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The interest to immigrate to or to invest in South Africa has increased tremendously over the last years. Besides the natural diversity of this country there are endless opportunities. However, many other aspects need to be considered before a conclusive decision to immigrate or to invest in South Africa can be taken. The content of our book not only covers immigration matters but also many other financial planning aspects. Other, also important factors such as living conditions, political structures etc. must be personally evaluated when visiting South Africa.

Immigrants have been screened more carefully over the last years. The influx of illegal immigrants and limited job opportunities has forced the Department of Home Affairs to apply a more restrictive immigration policy. Our immigration policy has been adapted to those of western industrialized countries where applicants must fulfil certain criteria and be of benefit to the local economy in order to be granted a residence permit.

Unfortunately, it is very difficult to obtain information abroad covering all relevant aspects of immigration to South Africa. A complex piece of legislation, not very well informed and sometimes rather unfriendly officials, are not much of assistance to a potential immigrant. Whilst some information is available, it is generally focussed on the institutional investor, not always available in English or just a superficial summary.

Our summary is tailor-made for the private investor or the prospective immigrant. The aim of this summary is to give you a broad overview on all the relevant categories that would qualify to immigrate to South Africa.

The principles are governed by the “Immigration Act of 2002” (Act 13 of 2002) the “Immigration Amendment Act 19 of 2004” and the revised “Immigration Regulations” which came into effect on 1 July 2005

Each application is considered on its merits by considering the following criteria:

• He / she must not be likely to be harmful to the welfare of the Republic of South Africa, by being financially independent and it should be unlikely that he/she becomes a burden to the state.

• If there is no financial independency, he / she must contribute to the local economy and assist with the creation of employment.

• Applicants that follow an occupation, in which there are already a sufficient number of persons available, will not be granted a residence permit.

• The applicant must be of good character. The applicant’s police record must not show any convictions and he / she must be a desirable inhabitant.

The local immigration authorities, called “Department of Home Affairs”, is responsible for the issuing of birth, marriage and death certificates, as well as passports, ID books, temporary and permanent residence permits. Most temporary residence permits can be converted to a permanent residence permit at a later stage.

The permit, which is attached in your passport, allows you to stay in the Republic for an unlimited time period. As a holder of a permanent residence permit you shall have all the rights, privileges, duties and obligations of a citizen, except for those rights that are ascribed to citizenship (voting right).

Your application can be lodged abroad or within South Africa. This means that you can enter South Africa with a temporary permit. Be aware that you must declare your proper intentions when entering the Republic.

Due to structural inefficiencies, the processing time of a permanent residence application can take up to 24 months, even if all documentation was handed in complete and no further investigations were needed. It is therefore of utmost importance that you plan your stay by incorporating the correct temporary residence visa in order to bridge the time gap.

The applicant may not fall within the category of “prohibited persons”. Examples of such persons are those with infectious diseases, anyone against whom a warrant is outstanding, previously deported and not rehabilitated etc. Further, “undesirable persons” may also not lodge an application. Examples are persons who could become a public charge, judicially declared incompetent, fugitives, criminally convicted etc.

The following categories for a permanent residence application are available:

• Holders of work permits for a period of 5 years that received an offer for permanent employment. This includes holders of a “corporate work permit”.

• The spouse of a citizen or PR permit holder.

• The child under the age of 21 of a citizen or PR permit holder.

• A person who has received an offer for permanent employment because no suitable citizen or PR holder could be found (“general work permit” or “quota work permit”).

• Persons on an “exceptional skills work permit”.

• Persons that intend to establish a business (“business permit”).

• Refugees

• Pensioners

• Financially independent persons

• Relatives within the first step of kinship (parents & children)of a citizen or PR holder

These categories are explained in more detail as follows.

Holders of work permits for past 5 years

A foreigner, who has been a holder of a work permit including one issued under a corporate permit for 5 years, may apply for a permanent residence permit.

It is important to note that the holder of the work permit has received an offer for permanent employment.

Spouse of citizens or residents

A spouse of a citizen/resident has the right to a permanent residence permit, provided that the spousal relationship has been in force for at least 5 years. If the time period is less than 5 years, the spouse will receive a temporary “accompanying spouse permit”.

The permit is issued under the condition that such permit will lapse if at any time within 2 years from its application the spousal relationship ceases.

Minors of citizens or residents

A minor child (under the age of 21) of a citizen/resident has the right to a permanent residence permit.

Applicants with offer for permanent employment

A foreigner that has been offered permanent employment may apply for a permanent residence permit if it can be proven that the position was advertised and no other suitable candidate could be employed (“general work permit”).

This type of application is also available to holders of “Quota work permits”. These positions do not require any advertising and must fall within the yearly limits of available permits prescribed from time to time for each sector of the industry.

Applicants with extraordinary skills or qualifications

A person that can fulfil such criteria has the right to apply for a permanent residence permit. Examples of such skills are scientists, researchers, authors etc.

We do not expect many applications to be lodged within this category and it is yet not clear what the criteria will be in order to determine extraordinary skills.

Business permit

Self-employed applicants who would like to establish a business or invest in an existing business or are already in possession of a business permit can apply for a permanent residence permit.

Besides many other documents, the applicant must show the following:

• An amount of at least R 2.5m value invested as part of the book value of the business . This must be certified by a chartered accountant. The origin of the funds must be from abroad.

• Proof, that the business will register for tax purposes (SARS registration);

• Proof that at least 5 citizens or residents shall be employed;

• If the capital is less than R 2.5 Mio to be invested, proof that the business in question is in one of the following sectors: information & communication technology, clothing & textiles, chemicals & biotechnology, agro-processing, metals & minerals, automotives & transport, tourism or crafts.

• A business plan outlining the feasibility of the business, both in the short and long term.

• Proof of registration with the relevant body, board or council, if applicable;

• The chartered accountant must certify the viability of the business;

It is always of advantage to prove a business track record of the applicant to prove entrepreneurial skills.

A business permit is generally issued for a period of 24 months and can be extended (renewed) thereafter.

A foreigner who invests in an existing business shall submit the partnership agreement and the financial statements of the preceding year.

Refugees

Unfortunately, our services do not extend for this category. Please contact the nearest South African Embassy or Consulate in order to obtain more information.

Retired persons

Persons, intending to retire in the Republic, may apply for a permanent residence permit, if they can prove a minimum income of R 20’000 p.m. resulting from capital, pension, or a combination of assets.

The income must be guaranteed for the rest of the applicant(s) life.

Applicants with minimum net worth

Applicants, who would like to “buy” their permanent residence permit, need to show a net worth of R 7.5 Mio.

The fee for the application is R 75’000 and is payable upon approval. We cannot see the how an applicant would select this category, because he/she could qualify within a different category without having to pay the enormous fee.

Relatives of citizens or residents

Relatives within the first step of kinship can also put in an application for a permanent residence permit. The act only lets relatives within the first step of kinship (parents, children and spouse) lodge an application and others will have to qualify in their own right within another category.

The citizen/resident has to render the necessary guarantees for the maintenance of the applicant.

Application procedure

Your application can either be handed in at your nearest South African Embassy / Consulate in your country of origin, or locally in the province where you intend settling. If possible, we recommend the local submission as we are in a much better position to give you the necessary support.

You will be invited for an interview with the submission of forms. The reason for the interview is that the officer can get an impression of the potential immigrants. You will also have to give your fingerprints which are used for the local police clearance check. Should any other issues need clarification whilst processing the application, you could be invited for a further interview.

A temporary permit will only be granted to applicants that do no fall within the category of “prohibited’ or “undesirable” persons. The permit is limited for a specified period and can be renewed or changed into another category upon application.

The following categories are available for temporary residence:

• Visitor’s Permit

• People taking up studies, going to school etc. (“Study Permit”)

• Self-employed applicants (“Business Permit”)

• Persons with an offer for employment (“Quota work permit, general work permit, exceptional skills work permit, intra-company work permit and corporate permit).

• Pensioners

• Relatives of citizens or residents

• Treaty permits, crew permits, medical permits, exchange permits etc.

Visitor’s permit and extensions

Depending of your country of origin, different rules may apply.

Most visitors to South Africa do not need to apply for a visa beforehand and are given a maximum stay up to 3 months at entry. Should you wish to stay longer, you have to apply locally for an extension which can no longer be done from abroad.

Please note that the length of your stay will be determined by the immigration official at the point of entry. Your return ticket has to be valid for the length of stay and the officer may apply certain conditions if in doubt (financial guarantees etc.).

Study permit

The application can also be lodged locally and the validity period is normally for the intended stay of study (maximum 2-3 years).

Only students at higher educational institutions may conduct part-time work for a period not exceeding 20 hours per week.

You can change institutions. The application has to be reformulated and submitted as if it was a new application. If the Department has not been notified of the change you could become an illegal foreigner.

Business permit

Self-employed persons and investors, intending to establish a business or investing in an existing business may apply for a business permit.

The application shall include, inter alia, the following documentation:

• A certificate from a chartered accountant that at least R 2.5 Mio. in cash or capital, or a combination of at least R 2.5 Mio. in cash and capital contribution is available. The funds must originate from abroad. If the capital is less than R 2.5 Mio to be invested, proof that the business in question is in one of the following sectors: information & communication technology, clothing & textiles, chemicals & biotechnology, agro-processing, metals & minerals, automotives & transport, tourism or crafts.

• The key factor of the application is business plan for the business. The study must show the viability of the business, details on employment, strategies etc.

• Undertaking that at least 5 citizens or residents shall be permanently employed

• Should there be an investment in an existing business: Documentation, proving the investment, such as shareholders’ or partnership agreements as well as details of the partners / directors.

• Undertaking to register with the appropriate statutory body, if required by the nature of the business

• Documentation proving the investment by means of shareholder’s or partnership agreements, as well as financial statements proving viability, if an existing business

• Undertaking to register with the tax authorities (SARS)

Business permits are normally issued for 24 months and can be renewed thereafter.

Work permits (employees)

The new Act distinguishes between the

• Quota work permit

• General work permit

• Exceptional skills work permit

• Intra-company work permit

• Corporate work permit

These categories are explained in more detail as follows.

Quota work permit

The system allows for a prescribed number of jobs for foreigners after consultation with other government institutions. The revised quotas under the amended Act were published in February 2006. They compromise of approx. 47’500 jobs, which have fallen under a very narrow definition. The old quotas were much broader and there were over 200’000 jobs available.

We are of the opinion that the narrow definition could lead most applicants to qualify under the “exceptional skills work permit”. The new definition has certain sectors of the industry, i.e. tourism, a great disadvantage.

The quotas will be determined annually after consultation with the Minister of Labour, Trade and Industry and published in the Government Gazette.

General work permit

The permit may be issued to a foreigner that does not fall within a quota work permit, has got no exceptional skills and is not transferred by the employer abroad.

The future employer has to show that:

• he has, despite diligent search, not been able to employ a person in the Republic with qualifications equivalent to those of the applicant

• that the employment terms and conditions are not inferior to those offered to citizens and residents prevailing in the relevant market segment, taking into account collective bargaining agreements and other standards.

• that he will notify the Department should the foreigner no longer be or employed in a different capacity or role.

Exceptional skills work permit

Applicants with exceptional skills or qualifications can apply for this type of work permit.

Intra-company transfer work permit

The permit is issued to a foreigner who is employed abroad by a business operating a branch, subsidiary or affiliate relationship in the Republic and who by reason of his employment is required to conduct work in SA for a maximum of 2 years, provided that:

• the employer undertakes that he will take adequate measures to ensure that the foreigner will at all times comply with the regulations and notifies the Department if reason to believe otherwise and
• that he furnishes the financial guarantees to defray deportation and other costs should the foreigner fail to depart upon expiry of the stay in SA.

The position must not be advertised, but the holder of the permit may not work for any other employer.

Corporate permit

Corporate applicants, who include companies and foreign states, which employ foreigners on a regular and continues basis, can apply for this type of permit.

After consultation with the Department of Labour and Trade and Industry, the Department determines the maximum number of foreigners to be employed.

Please contact us should you require more information on this type of permit.

Retired person’s permit

Pensioners, wanting to stay more than 3 months in the Republic, can apply for this temporary permit which is valid for a maximum of 4 years and that can be renewed periodically. It is also possible under this section to accept a job offer, for which a separate application must be lodged.

The required capital / income available must be R 20’000 p.m. per person.

The permit is ideal for pensioners that sojourn in the Republic on a seasonal or continuous basis.

Relatives or citizens or residents

Relatives, being a member of the immediate family (parents, children, sisters & brothers) can also put in an application for a temporary residence permit. The validity period is a maximum of two years.

Other temporary permits

Other categories, such as treaty permits, crew permits, medical treatment permits, exchange permit, asylum permit, cross-border and transit passes etc. are also available. Please contact us should you require more details.

People born in South Africa (and those with citizenship by naturalisation) but living abroad are not restricted from returning to the Republic. This is also applicable to former emigrants. Proof has to be submitted that the South African citizenship has never been given up (birth certificate etc.). Such applications are normally lodged abroad where a “determination of status” will be launched.

Should you have given up your citizenship because you have accepted another passport, you may apply again for your South African citizenship.