UPDATE: OCTOBER 2023
Critical Skills Work Visa
Hi guys! I just want to take the opportunity – the new critical skills list was released pretty much, six months ago or six months will be reached on the second of August. And I thought, you know, I got to see our practical experiences after six months of critical skills, what works, what doesn’t work, what’s unfortunate, and maybe what’s positive. Positive is very little. So that’s maybe, as an opening statement, I think Home Affairs has definitely not improved the situation with a lot of changes and I think as a comment, right at the beginning, if you want to grow the economy, and if you want to be attractive to attract highly-talented people, I think the changes and the new list and the practical implementation of it has not been positive, as it has been negative, and it will definitely not attract more talent. It will definitely attract less talent. And I will explain why now in this video. I will be fairly brief.
But I want to dive into three or four issues really – what we see from a practical point.
So, the first number one category, which is widely used, is the corporate General Manager. So luckily, it still remained on the new list, although the draft removed it. So that was great that it remained. But it was always really not clear which corporate qualifies to have a Corporate General Manager, right. And Home Affairs has now kind of explained that. And they’re looking for mid-sized companies with a turnover of in excess of 85 million ZAR. So, if you were a single person with a start-up, that’s not going to qualify for corporate General Manager. I don’t agree with that because we have sizable European companies who just start up here. And they certainly have the potential to grow very quickly. So these people would look at an ICT but obviously not everybody can go the route for the ICT. If you don’t have an assignment contract and you have local employment and critical skills, often it’s the only option. So that’s number one.
Number two is the MIE verification. So that was introduced for permanent residence applications. The good news is that the MIE reference checking is working fairly smoothly – it takes about 10 working days. It is important to sometimes tell the clients that there is somebody checking references and maybe also provide really, telephone numbers which are working and not just an email to make it easier for MIE but in practice, because it’s private body, actually works pretty well. So that’s okay, for permanent residence.
Then the other one was, it was not clear if you need to be a professional statutory body, or actually a non-statutory professional body is also fine to confirm the skills. So difference between statutory and non-statutory right. And there was clarification received from the Department of Foreign Affairs that it can also be a non-statutory professional body. Okay, so that’s great, because it broadens the professional bodies quite widely.
And then the other practical open question was – and in practice – we’ve seen this a lot – in the old days, it was clear that if you were candidate for professional body, you were entitled to apply for critical skills. We have seen in practice, quite a few rejections for candidates of professional bodies. And I don’t understand why because nothing changed from a directive point of view, nothing changed from a legislation point of view, there is still the same wording in the critical skills. So, in my opinion Home Affairs should not now change their adjudication pattern, to disadvantage candidates for professional bodies. Okay, so, but that’s, that’s something to watch, and definitely something where I’ve seen negative changes.
And then another one, obviously, I commented already on one of my earlier videos, the removal of the 1-year critical skills without a job offer is, I think, really, really a step into the wrong direction because a lot of foreigners, they want to come to South Africa and find a job here, it’s nearly impossible to find a job from being an overseas in South Africa. So I don’t think that was really, really smart.
And then the most difficult change is really the increase of the required NQF level. So, in the previous critical skill list, most categories required an NQF level of five, six, sometimes seven, which would be bachelor’s degree. Now most positions require NQF level eight, which is an honours degree. And also, it really disadvantages holders of critical skills, who were issued with a critical skills visa under the old list, with an NQF level of six or seven, and now that are qualified anymore, and one could have maybe introduced some kind of an offset – if you have work experience in excess of two years or five years, then you know, we don’t need the NQF level of eight, for instance. But unfortunately, it seems that there is no consideration of work experience. And I think that’s really bad. That’s really, really bad. I mean, you get people who have 20 years of work experience, are highly specialised and skilled, and maybe only have a bachelor’s degree or trade qualification, which in Switzerland, Austria, Germany would be still quite a normal way of a career. They don’t qualify at all for critical skills. And that’s a problem.
Yeah, my conclusion already gave you. So it’s a mixed bag. And obviously, in practice, the processing times at SAQA are four to five months, the processing times at professional bodies of, well, six weeks to three months. And in particular, the long processing times when you submit the application overseas due to the centralisation of the adjudication process in Pretoria, which adds another three to four months, leads in practice, to processing times of six to nine months. And which employer is going to wait for nine months for somebody who they want to employ? So yeah, in practice, we are closing down the immigration system. And I think that’s the worst message of this video. And, yeah, maybe somebody watches and has some political clout and can tell the politicians that, this is not how to attract foreign talent and grow the economy, but be it as it may. Cheers, and tune in again. Bye bye.
The 2nd of August 2022 will mark six months of the new Critical Skills List for South Africa being in effect. At IBN Immigration Solutions, we have been advising and consulting clients based on the new list for the past months. In this article, I will share what we have learnt, what requires further clarification, and discuss the impact of some of the more drastic changes.
What We Know – Lessons Learnt
For the categories of Corporate General Manager and Director (both limited to medium enterprises or larger), very clear numerical guidelines were published to determine whether a company meets this threshold. While the thresholds are quite high, for example, requiring over 50 employees and an annual turnover greater than 85 million ZAR for Finance and Business Services – reducing the availability of this category for many people who had previously qualified – these clarifications are welcomed. Previously, the adjudication of Critical Skills Visas for Corporate General Manager had become unpredictable based on apparent implicit assumptions of what the company size should be.
The MIE Verification of Employment History now required for Permanent Residence applicants in the field of Critical Skills has proven to be a fairly smooth process that usually takes no more than 5 – 10 working days.
In some cases, even if your job title is not featured in exactly the same way on the Critical Skills List, you may be able to qualify under one of the alternative titles explicitly stated in the Technical Report on the Finalisation of the Critical Skills List. This is produced for the Department of Higher Education and Training as part of the Labour Market Intelligence research programme (“the Technical Report”).
Although the Critical Skills List talks of a “Statutory Professional Body” in its last column, the Department of Home Affairs has clarified that both statutory and non-statutory professional bodies continue to be applicable. Most Professional Bodies have, by now, updated their lists to confirm which categories they can assist with. If you are unsure of the applicable Professional Body and registration processes, please contact us for assistance.
Further Clarification Please – Things to be Addressed
Under the operation of the new Critical Skills List, there appears to be a trend whereby applications of persons who hold a Candidate membership with the Professional Body are being denied. However, there is no indication of such a limitation on the new Critical Skills List or in the Technical Report. Often, candidate membership will be the applicable point of entry for a foreign applicant or recent graduate, due to the internal requirements of the professional bodies. While it may be understandable to limit Critical Skills Visa applicants to those who hold a job offer, the obstacles created for graduates of South African universities in the fields of Critical Skills (i.e., skills that South Africa needs for economic growth) and with a secured job offer are not justifiable. It would be welcome for the Department of Home Affairs to clarify whether this has been a further law change brought about by the new Critical Skills List.
Further, the Director General’s Immigration Directive No 1 of 2022, which deals with the Implementation of the Critical Skills List and published by the Department of Home Affairs on their website on 11 March 2022, does not mention the withdrawal of Immigration Directive 22 of 2014, which deals with the Confirmation of Skills Letter in addition to Professional Body membership and rejections based on the lack of such a letter therefore also raise questions. The status of this 2014 Immigration Directive should also be clarified.
Impact – The Ones Facing Uncertain Futures
The removal of the 1-year job seeker option has placed the possibility of an uncertain future before many foreign students in South Africa. Foreign students now need to juggle their final year together with the search for employment or face the need to leave South Africa at the end of their studies and seek employment while based in their home country. This change in Immigration Policy placed South Africa out of step with most European countries and hampers the possibility to retain those critically skilled foreigners, that, having studied in South Africa and within the Southern African context, surely hold some of the most desirable Critical Skills the country would want to retain.
The strict insistence on a certain (high) NQF Level removes the Critical Skills Visa as an option for some and creates administrative nightmares for others. Most categories on the new list, especially the professional service ones, have an NQF Level of 8 or even 9. Persons already residing in SA on a Critical Skills Visa, that previously had no requirement of a particular NQF level of qualification and are due for a visa renewal, face the uncertainty of potentially no longer qualifying for the Critical Skills Visa, even though they may have 10 or more years of professional experience in that field. Persons who may be lucky enough to hold a higher qualification, face the administrative delays of a new SAQA application (with current processing times of three to five months) to get the much-needed acknowledgement of their NQF level.
The Technical Report on the Finalisation of the Critical Skills List, produced for the Department of Higher Education and Training, has proposed that the Department of Home Affairs consider whether and how experience can be used as a requirement for applicants as part of the visa application process. The seemingly arbitrary exclusion of some highly experienced and skilled persons in the field of Critical Skills that we have seen would make this a desirable step for the Department of Home Affairs to take.
It is easier said than done for holders of ZEP permits to apply for a Critical Skills Visa. For Critical Skills Visas, a common impact we have been seeing is the lack of a high enough NQF level, even if the occupation and experience fall squarely within the Critical Skills List. Many Zimbabweans are more than willing to take up studies to further themselves and obtain the requisite NQF level but, as such studies will not be completed by the end of the grace period, they will first be required to obtain a SA Study Visa. For some, this is not financially viable, as it limits the ability to work to 20 hours per week. For those who can afford to take some time with less work and income, they are likely to face the issues outlined above, concerning the lack of a job-seeker visa after the completion of their studies and an apparent trend of non-acceptance of professional body candidate memberships.
Six months into working with the new Critical Skills List, we have certainly seen the negative impact of a more restrictive visa policy on certain groups of people. While it is surely easier to sell a restrictive visa policy as a solution to the South African unemployment issue, it is questionable whether this logic truly translates to much-needed economic growth, which ultimately relies on SA being an internationally attractive investment destination. There are some open questions we hope the Department of Home Affairs will address soon but in the interim, we have gained clarity and experience on some of the important aspects and look forward to advising and assisting you with regard to your Critical Skills Visa journey.
Written by: Hannah Mminele
Edited by: Lauren Daniels
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