What skills shortage? Baffling new Visa regime beggars belief
South Africa is notorious for its red-tape – many sets of bureaucratic standards that span all sorts of policy which often end up handicapping the ease with which both nationals and foreigners do business in and with South Africa. In another shocking move the Department of Home Affairs has hammered what can only be described as a nail in the coffin of bringing much needed skills and investment into the country. Where the rest of the continent is trying to make things for easier for development, trade and business SA is creating more and more layers of confusion and hassle for those interested in our country and what its economy could offer. This interview seeks to get an in-depth understanding of the latest implementation of visa regulation. You're likely to shake your head in frustration at the news, and wonder what on earth those in power were thinking – again. – LF
GUGULETHU MFUPHI: It's good to have you back here with us on Power Lunch. Joining us to discuss the new Visa regulations being implemented in South Africa is Peter Wieselthaler, Director of Immigration Law at Thompson Wilks. It's good to have you with us, Peter. I understand that you liaise quite a bit with clients – corporate clients, locally and internationally – in getting some of their employees here. Your relationship with them and the correspondence that you're receiving from them: are they finding that these new regulations are weighing a bit heavy on their talent management?
PETER WIESELTHALER: Absolutely. I deal with a number of multi-international corporates and their ability to bring in the required skills that they need, is being severely affected by the Department of Home Affairs' new regulations under 2014.
GUGULETHU MFUPHI: When you say 'severely', how serious is the issue?
PETER WIESELTHALER: Well, it's very serious. Home Affairs have surprised the entire market. They gave no warning that it would be implemented and it was a surprise attack. A number of my clients have said that it's been like one of those series where only the top brass of the Department of Home Affairs knew anything about this implementation. It's quite a funny story. I was sitting on a Thursday afternoon, 22nd of May, and I got a phone call from a colleague in Cape Town who said that the new immigration regulations had been published in the Government Gazette. I said 'there's no possible way that could have happened. We would definitely have been given some sort of warning or something', and there it was. We logged onto the Government Gazette website and they were published with implementation on 26th of May.
ALEC HOGG: Just unpack them for us.
PETER WIESELTHALER: The new regulations.
ALEC HOGG: Yes.
PETER WIESELTHALER: A complete overhaul of the previous regulations, repealing some of the visa categories that were available under the old categories, and just making it a lot more onerous for all of the applicants.
ALEC HOGG: And you never had any prior warning. Did anyone have any prior warning?
PETER WIESELTHALER: In February this year, they printed out draft regulations for public comment. All the immigration practitioners then went and commented on those regulations, but the new regulations were just published on the 22nd of May, effective 26th of May.
ALEC HOGG: Were they very different to the comments you provided?
PETER WIESELTHALER: Yes, very different.
ALEC HOGG: In what way?
PETER WIESELTHALER: More onerous.
ALEC HOGG: What do you mean 'more onerous'? What does that mean?
PETER WIESELTHALER: Well, looking at the general work permit for example, under the old regulations, advertisements needed to be done; searches in South Africa needed to be done by the corporates looking for local candidates to fill the position. If that wasn't done, then the offer could be made to the foreign employees. Under the new regulations, the Department of Labour now has to be approached to do what's called a diligent search. They then send a letter of recommendation to the Department of Home Affairs on all of these applications, making it a lot more onerous.
GUGULETHU MFUPHI: I wanted to touch on that. Essential Skills or the Essential Services list: that's what is referred to, and I recall when you we spoke to Jess Green from Immigration South Africa, he said it's interesting to note that maths and science teachers have been left off that list.
PETER WIESELTHALER: Exactly. The implementation of the Critical Skills Visa has been shocking, to say the least. Engineering Council of South Africa, Institute of Directors, and the Institute of Business Advisors: not all are issuing these motivation letters for these guys to come in. Part of the regulations for Critical Skills Visa says you need a letter of motivation from a relevant government body or from one of the bodies that you'd have to subscribe to, like the Engineering Council of South Africa if you were an engineer.
ALEC HOGG: I'm really confused because I see many Chinese people coming into South Africa all the time. Not a lot of them (or maybe some of them) are skilled, but primarily, many of these people are retailers. Yet, you're telling me now that if we want to bring in maths and science teachers, you have to ask the Department of Labour first to give you a letter, which presumably, is a quick turnaround.
PETER WIESELTHALER: No, not at all. The position would have to be advertised in the National printed media for a period of 30 days. The Employer would have to prove to the Department of Labour that they've conducted a diligent search. Once they've compiled all of their documentation, they would then submit it to the Department of Labour. The Department of Labour would then consider the application for a period of 30 working days
ALEC HOGG: So where do all these Chinese people come from? Do they get special visas?
PETER WIESELTHALER: Well, I can't comment on that. I'm not sure on how the Chinese people are coming through.
ALEC HOGG: Peter, take it from the perspective of a member of the public. Everything you've said to us now gives me the impression that we don't want people from outside of the country to come into the country. We're making it more difficult for skills to come through. What would motivate that? Is this politics?
PETER WIESELTHALER: I can't comment on what the motivation is behind it. We went to a briefing by the Department of Labour where they confirmed that the foreign work pool is to great and they want to start cutting down on the foreign work pool within the country, thereby making it more difficult for foreign nationals to apply for working visas in the country.
ALEC HOGG: Do we have a skills shortage in South Africa?
PETER WIESELTHALER: Absolutely. We have a skills shortage.
ALEC HOGG: So who's going to fill those positions if we are unable to bring in people from abroad?
PETER WIESELTHALER: Currently, a number of my corporate clients are sitting with a skills shortage where they just simply cannot get people in.
ALEC HOGG: So the Department of Labour is saying 'it doesn't matter. You must put people in' presumably, if they want to cut back on the labour pool.
PETER WIESELTHALER: Well, the Department of Labour's Function is to ensure that the diligent search is done and under the general work visa. If they are of the opinion that the Employer has done that diligent search and there is no local candidate to do it, they will then recommend the application for the general work visa.
ALEC HOGG: Are your clients looking for different geographies?
PETER WIESELTHALER: Absolutely.
ALEC HOGG: Give us an example.
PETER WIESELTHALER: Considering investments into Australia, considering investments into the U.S., and considering investments into other countries in Africa: it's just becoming so difficult here to get anything done.
ALEC HOGG: What can you do about it? What can be done about addressing this?
PETER WIESELTHALER: Well, I've addressed a number of letters to the Department of Home Affairs. The biggest frustration that all of the immigration practitioners or attorneys have, is the lack of information that the Department of Home Affairs is giving us. They have a notice board on their website. They have a statement on their website. All they need to do is publish their internal directives. Home Affairs seem to be very happy to watch all these foreign nationals, immigration attorneys, and practitioners hit their heads against the wall, and stumble when new regulations are done. You guys would be aware of that directive 9/2014 where if you do not have a visa in your passport, but you have a pending application with the department of Home Affairs…
If you present yourself at the airport to exit the country, you are declared an undesirable person. There's been quite a lot of case law on this. All Home Affairs had to do was give us a bit of warning. One of my clients went on the Monday morning when the directive was issued and they were declared an undesirable person with absolutely no notice.
ALEC HOGG: Which meant…what?
PETER WIESELTHALER: They weren't allowed to return to the country for a period of five years.
GUGULETHU MFUPHI: That's someone working for a corporate company that's bringing investments into S.A.
PETER WIESELTHALER: With a pending application of six months…
ALEC HOGG: I have a friend who's put a bit of money into the United States and he was given a green card.
PETER WIESELTHALER: Absolutely.
ALEC HOGG: So it seems as though we're doing the opposite.
PETER WIESELTHALER: There are visa categories and permanent residence categories where you can make investments into South Africa, but again, the process is very bureaucratic and long-winded. There's nothing quick about it
GUGULETHU MFUPHI: Maybe it goes down to policy again. We're doing the wrong things to make a business-friendly environment in South Africa.
ALEC HOGG: But somebody somewhere has to have decided that they wanted us to go along this route and that's what confuses me. The thinking seems to be a little bit skewed – maybe by politics.
PETER WIESELTHALER: Absolutely. Many of the immigration practitioners are on exactly, the same page. We don't have the answers. A number of my big corporate clients have said to me 'Peter, we trust you. We believe in you. We listen to everything that you say, but we can't accept the advice you're giving us', so they've then gotten second and third opinions. They've then come back to me and said 'the whole market is currently at sixes and sevens'. No one seems to be able know how to advise their clients.
GUGULETHU MFUPHI: Peter, thank you so much for joining us. We'll definitely get you back again. That was Peter Wieselthaler, Director of Immigration Law at Thompson Wilks.