As reported in FEDHASA’s newsletters earlier in the year – all Zimbabweans currently on a Zimbabwean Exception Permit (ZEP) which currently permits them to work in SA, now need to successfully apply and receive a ‘mainstream visa’ by the latest 31st December 2022, in order to continue legally working and living in SA.
See below an article written by Julian Pokroy, an Immigration and Nationality Law Attorney which provides insight as to the background and current status of this new legislation affecting Zimbabweans currently on a ZEP, living and working in SA.
The Zimbabwean Exemption Permit ” ZEP” is a special Ministerial exemption granted to qualifying Zimbabwean Citizens in South Africa.
The original dispensation was premised on the huge number of Zimbabwean nationals who were in South Africa undocumented.
The rationale for their migration to South Africa was largely economic but many actually fled Zimbabwe to escape oppression in their home country.
The result was an influx of Zimbabwean nationals into the country, who did not qualify for any of the visas and for this reason they remained undocumented. This does not detract from the very many Zimbabwean nationals that came in on legal visas in critical skills and other qualifying categories over the period.
A number of those that fled applied for asylum in South Africa under the provisions of the Refugees Act but even at this time the author of this article is unaware of any such applications for Zimbabwean nationals succeeding as refugees.
The overwhelming majority of those who did arrive were in the “undocumented” category.
At that stage, the South African government realized that something had to be done to document these people who were illegally in the country.
The way that this was dealt with was for the Minister to grant a blanket exemption to any Zimbabwean national who was
undocumented and possessed a valid Zimbabwean passport, by way of section 31 (2) (b) exemption. This exemption was granted for a limited period and enabled the holder of such exemption permit to remain in South Africa legally, to enable them to work, study or carry on business for the duration of the exemption. A second exemption of the same nature was granted shortly before the expiry of the first exemption and when that was due to expire than a third exemption was granted, being the subject of this article.
This exemption was set to expire on 31 December 2021 and the Minister of home affairs had indicated they would be no further extensions thereafter.
Shortly before the actual expiry date in December 2021 the Minister issued a further directive extending the period to 31 December 2022 in order to enable those who held this exemption to apply for a “mainstream” Visa and enabled a change of status from the ZEP to the “mainstream” Visa if they are indeed qualified for that.
This is where the crunch lies as most of the holders of the exemption permit holders simply do not qualify for any “mainstream” Visa.
The “mainstream” visas or work visas, retired person visas, relatives visas, business visas and financially independent persons visas.
By way of example, a general work Visa requires that the prospective employer advertised the position in the national printed media, in a format specified in the Immigration Regulations and provide proof that they were unable to secure the services of a South African citizen or permanent resident. This would require a spreadsheet to be produced setting out full details of any person who applied for the position who is a South African citizen or permanent resident, giving it
full contact details, a copy of the CV and setting out full reasons why they were not suitable for the position.
The next phase would be to submit proof of the aforementioned to the Department of Labour requesting a recommendation letter from the Department of Labour.
The further crunch lies in the process with the Department of Labour as they are taking an indeterminate length of time to deal with the requests and almost to the last, the recommendations are negative. This is a major setback to any application for a general work Visa.
The only way to get around this aspect is to petition the Minister of Home Affairs for a waiver of the Department of Labour and advertisement requirements.
The problem with this premise is that the backlog in dealing with waiver petitions of this nature is so huge at this time that it is almost impossible to predict how long it would take to process such a petition. Delays of up to a year or more in this regard are prevalent at this time.
The next option would be to apply for a Critical Skills Visa if the individual applicant qualifies and what the critical skills categories are. These categories require not only the academic, trade or professional qualifications but also a SAQA accreditation of the qualifications and memberships of the applicable professional body for that trade, profession or occupation. The critical skills Visa list was updated recently and can be viewed by clicking on the link hereunder:
http://www.dha.gov.za/index.php/immigration-services/scarce-skills-work-permits
The bulk of the potential Zimbabwean applicants simply does not qualify in this category.
The retired person category, financially independent persons category and own business category have financial requirements which simply cannot be met by most of the potential applicants. This rules out the utilisation of this category for most of the applicants for this reason.
If the holder of a ZEP exemption is married to, in a permanent cohabitating or spousal relationship with, or a custom reunion with a South African citizen or permanent resident then this would provide the opportunity to apply for a change of status within the period of grace up to 31st of December 2020, to that of an accompanying spousal Visa, with or without a work endorsement.
In a recent media release, the Minister of Home Affairs stated that there would be no further extensions of the exemption and “period of grace”.
This means is that any person who does not qualify to change to a “mainstream” Visa under the Immigration Act would technically have to be out of the country by no later than 31 December 2022.
According to the same media release, the indication is that approximately 250,000 Zimbabweans availed themselves of the exemption permits. This is a small percentage of the Zimbabwean nationals in the country.
What has not been stated by the Minister is how many “undocumented” Zimbabwean nationals are indeed in the country at this time.
The various groupings representing Zimbabweans who are faced with this dilemma have indicated that they are going to challenge the ruling by the Minister of Home Affairs, through our High Courts.
It is our belief that the process has not been well thought out by the Minister of Home Affairs and that a potential humanitarian crisis faces the very many Zimbabweans simply do not qualify in any of the above categories.
Should you have any queries please do not take contact the author of this article by email at enquiries@immigration.org.za
