Director
Mr. M. Tlhomelang |
[t] +27(0)12 314 8409
[f] +27(0)12 323 0923 |
Postal address
Room 1510
Private Bag X114
Pretoria
0001 |
Physical address
Civitas Building
242 Struben Street
Pretoria |
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GENERAL REMARKS ABOUT PERMANENT RESIDENCE
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The Republic of South Africa can accommodate only a certain number of immigrants. There are valid reasons for this. In the first instance South Africa has a vast reserve of unskilled and
semi-skilled workers who are entitled to employment opportunities and to an economically viable lifestyle for themselves and their families. For this reason no one in the unskilled and semi-skilled categories will normally be accepted as an immigrant worker in South Africa.
Because of the considerable need for the creation of job opportunities for South African citizens and permanent residents, as well as for their training and development, it will be understood and appreciated that South Africa cannot afford to grant permanent residence permits to persons who are not seriously committed to settle in the RSA permanently and to investing their skills, assets, knowledge and experience for the benefit of themselves and the people of South Africa. One of the most important aspects of immigration control is therefore that a visible connection be maintained between foreigners working in the RSA and the training of South African nationals.
The Immigration Act, 2002 (Act No 13 of 2002), inter alia aims at setting in place a system of immigration control, which would ensure that permanent residence permits are issued as expeditiously as possible and on the basis of simplified procedures and objectives and reasonable requirements and criteria, taking into consideration that the contribution of foreigners in the South African labour market should not adversely impact on existing labour standards and the rights and expectations of South African workers.
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WHAT ARE THE BASIC PERMANENT RESIDENCE REQUIREMENTS?
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The South African immigration policy is embodied in the Immigration Act, 2002 (Act No 13 of 2002) and the Immigration Regulations, which place emphasis on the broadening of the economic base of South Africa, by concentrating especially on the obtaining of those immigrants who are in a position to render a meaningful contribution in this regard.
The following persons are regarded as prohibited persons and as such they do not qualify for permanent residence permits:
- Those infected with infectious diseases that can spread easily. These diseases are cholera; pestilence; yellow fever and any other diseases as determined by the Department of Health from time to time by public notice in the Government Gazette.
- Anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country with which the RSA has regular diplomatic relations in respect of genocide, terrorism, murder, torture, drug trafficking, money laundering or kidnapping.
- Anyone previously deported and not rehabilitated by the Department in the prescribed manner. A foreigner who was previously deported, will be deemed to be rehabilitated if he/she submits a sworn affidavit/solemn declaration that he/she will comply with the Act; if the Department has no reason to believe that he/she is inclined to violate the Act again; and after four years absence from the RSA. Alternatively, a foreigner will also be deemed to be rehabilitated by a forfeiture to the State of R50 000, which may be reduced to R2000, when such person previously paid for the cost of his/her deportation as well as all the costs related thereto.
- A foreigner who is a member or supporter of an organisation practising racial hatred or social violence.
- A foreigner who is or was a member of an organisation using crime or terrorism to reach its goals.
Before any application for permanent residence status may be accepted or considered from a person referred to above, such person must submit a representation to the Minister of Home Affairs motivating why he/she should be declared not to be a prohibited person. Only after the Minister of Home Affairs has declared the prospective immigrant not to be a prohibited person, may an application for permanent residence status be submitted.
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WHERE DOES ONE APPLY FOR A PERMANENT RESIDENCE PERMIT?
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If a prospective immigrant is still abroad, an application for a permanent residence permit must be handed or mailed to the South African diplomatic representative in the foreign country of the applicant's normal residence, which includes permanent residence or long-term temporary residence, or in the foreign country of which the applicant validly holds a passport.
However, if the prospective immigrant is already residing in the RSA on a valid temporary residence permit, a permanent residence application must be submitted to the Department's Regional Office in the area in which the applicant intends to work or, in respect of purposes other than work, where he or she sojourns.
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WHAT IS THE ROLE OF THE DEPARTMENT OF HOME AFFAIRS IN THE PROCESS OF APPLYING FOR PERMANENT RESIDENCE STATUS?
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Officials of the Department of Home Affairs are responsible for all the functions in so far as permanent residence applications are concerned. In the case of a permanent residence application being submitted abroad, officials of the Departments of Foreign Affairs or Home Affairs, as the case may be, are responsible for all the administrative functions in so far as such applications are concerned. The administrative functions include, inter alia, the acceptance of a complete application and the relative tariff, conducting of an interview and processing of the application. The responsibility of considering permanent residence applications has been delegated to certain senior officials in the Department of Home Affairs, although the relevant Regional Director carries the primary responsibility for all the functions performed in his/her region.
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MAY SOMEONE ELSE APPLY FOR A PERMANENT RESIDENCE PERMIT ON BEHALF OF A PROSPECTIVE IMMIGRATION?
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Yes. However, no one other than an attorney, advocate or immigration practitioner may conduct the trade of representing another person in applying for a permanent residence permit. An Immigration Practitioner is a person, other than a practising advocate or attorney who, for remuneration and by trade, represents or acts on behalf of other persons in respect of any of the Department's procedures, proceedings or activities flowing from the Immigration Act and Immigration Regulations. It is a requirement that all immigration practitioners must be registered with the Association of Immigration Practitioners of South Africa (AIPSA). Information regarding this matter is available on the Association's website which may be visited at: www.im-sa@iafrica.com.
It is important to note that the Department of Home Affairs provides the same services free of charge. To make use of the services of an immigration practitioner is one's personal choice and the Department of Home Affairs will not accept any responsibility in this regard. Whilst the Department respects the right of an applicant to use the services of an immigration practitioner, it must be made clear that the afore-mentioned persons are not employees of the Department of Home Affairs and may not portray any involvement in a special or privileged relationship with the Minister or officers of the Department of Home Affairs.
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WHAT DOES IT COST TO APPLY? WHEN MUST ONE PAY? WHAT DOES THE DEPARTMENT OF HOME AFFAIRS DO WITH THE MONEY?
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An administrative processing fee of R1 520 (US$ 169/EU 152) is payable in respect of a formal permanent residence application, per individual or per family, except in respect of an application by the spouse or dependent child of a South African citizen or permanent resident. This fee is not refundable irrespective of whether the application is approved or not.
The fee is payable on submission of the application. The RSA amount is payable when the service is rendered within the RSA, whilst the foreign tariff (if not in US dollar, then the corresponding amount in the local currency) is applicable to services rendered outside the RSA by South African Missions.
The fees represent administrative costs involved with the processing of applications and the money is paid over to the Department of Finance on a regular basis, which forms part of State income. The Department of Home Affairs therefore does not directly benefit from the tariffs paid by prospective immigrants.
Tariffs are reviewed annually and are thus subject to change every year.
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HOW LONG DOES IT NORMALLY TAKE TO PROCESS PERMANENT RESIDENCE APPLICATIONS?
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Regulation 2(14) of the Immigration Regulations requires of the Department of Home Affairs to process an application without undue delay or to inform the applicant when it cannot do so or when additional information or action is required on the side of the applicant. The Department is mandated in Regulation 33(7), to endeavour to issue a permanent residence permit within thirty (30) days after having received a complete application.
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WHICH CATEGORIES ARE AVAILABLE AND WHAT ARE THE INDIVIDUAL REQUIREMENTS APPLICABLE THERETO?
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The Immigration Act, 2002 (Act No 13 of 2002), makes provision for DIRECT RESIDENCE to be obtained under section 26 of the Act, or RESIDENCE ON OTHER GROUNDS to be obtained under section 27 of the Act.
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8.1 DIRECT RESIDENCE - SECTION 26
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(i) SECTION 26(a)
This category applies to a foreigner who has been resident in the RSA on a work permit for a period of five years; who has received a permanent offer of employment; whose employer's chartered accountant has submitted a certification that the post exists and is intended to be filled by such foreigner; and in respect of whom the Department of Labour certified that the terms and conditions of the person's employment are not inferior to those applicable to South African citizens or permanent residents in the same field.
(ii) SECTION 26(b)
This category applies to the spouse of a South African citizen or permanent resident, provided that a good faith spousal relationship exists and on condition that the permit shall lapse if, within three years after the date of the application, the relationship no longer exists, except in the case of death.
A spouse means a person who is party to:-
- a marriage, i.e. a legally sanctioned conjugal relationship intended to be permanent and concluded under the laws of the Republic of South Africa, or under the laws of a foreign country. In the case of a marriage that had been contracted under the laws of a foreign country, such marriage must be substantiated by official documentation of the relevant foreign country, showing that the relationship subsisted as per six months prior to submission to the Department of Home Affairs; or
- a customary union, i.e. a conjugal relationship according to indigenous law and custom and which is recognised and documented; or
- a permanent homosexual or heterosexual relationship which calls for cohabitation and mutual financial and emotional support, and is proven by a prescribed affidavit substantiated by a notarial contract.
Although the Department of Home Affairs recognises the fact that certain religions and customs allow men to have more than one wife, the benefits in terms of the Immigration Act shall be extended to one spouse only.
(iii) SECTION 26(c)
This section applies to a child of a South African citizen or permanent resident under the age of 21 years. A permanent residence permit under this section is issued on condition that it shall lapse, unless an application for its confirmation is submitted within two years after the date on which the child turns 21 years of age.
(iv) SECTION 26(d)
This section applies to the child of a citizen and no age restriction applies. Since the child of a South African citizen by birth or descent normally qualifies for South African citizenship on the basis of his/her parents' citizenship status, this category is applicable to South African citizens by naturalisation.
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8.2 RESIDENCE ON OTHER GROUNDS - SECTION 27
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In addition to the requirement that a prospective immigrant should not be a prohibited person (paragraph 2), prospective immigrants who wish to apply for permanent residence status in terms of section 27 of the Immigration Act, 2002 (Act No 13 of 2002), must demonstrate that they are of good and sound character. In verifying these characteristics, the Department may make enquiries into matters relevant to whether the prospective immigrant is law abiding and in the habit of fulfilling his or her legal obligations. The Department shall deem an undesirable person, as referred to in section 30 of the Act, not to be of good and sound character. Undesirable persons are: -
- anyone who is or is likely to become a public charge;
- anyone identified as such by the Minister after consultation with the Immigration Advisory Board;
- anyone who has been judicially declared incompetent;
- an unrehabilitated insolvent;
- anyone who has been ordered to leave the RSA;
- anyone who is a fugitive from justice; and
- anyone with previous criminal convictions without the option of a fine for conduct which would be an offence in the Republic, with the exclusion of certain prescribed offences.
(i) SECTION 27(a)
This section applies to a foreigner who is in possession of a permanent work offer in the RSA, and such work offer complies with the following provisions/conditions:
- Certification was obtained from the employer's chartered accountant, confirming that the post exists, was advertised and that no suitably qualified South African citizen or permanent resident could be found to fill the position.
- Certification from the Department of Labour was obtained regarding the terms and conditions (i.e. salary, benefits, bargaining council agreements, etc.).
- The application falls within the yearly limits (quotas) that are prescribed for each sector of industry, trade and commerce.
(ii) SECTION 27(b)
This section applies to prospective immigrants who have exceptional skills and qualifications. In order to demonstrate extraordinary skills or qualifications to the satisfaction of the Department, applicants under this category must submit a letter from a foreign or South African organ of State, or from an established South African academic, cultural or business body, confirming the applicant's exceptional skills or qualifications. In addition, testimonials from previous employers, comprehensive curriculum vitae, publications, or any other proof to substantiate exceptional skills or qualifications must be submitted.
(iii) SECTION 27(c)
This category is applicable to a foreigner who intends to establish a business in the RSA; or who already holds a temporary residence permit to conduct a business in the RSA; or who intends to invest in an existing business in the RSA. The chartered accountant of an applicant who applies under this category, must certify that at least R2 500 000 has been invested as part of the book value of the business and in addition, at least one of the following criteria has been met: -
- a business track record to prove entrepreneurial skills;
- proof that the business contributes to the geographical spread of economic activity;
- proof that at least five South African citizens or permanent residents shall be employed;
- 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 export potential of the business; or
- calls for or involves a transfer of technology not previously generally available in the RSA.
The Department may waive or reduce the specific capitalisation requirement for business, which shall from time to time be published, if such a step will be in national interest, or if and when the Department of Trade and Industry makes a request to this effect.
Once a permanent residence permit has been issued under this category, the person concerned has to renew the certification of the chartered accountant two years after the date of issue of his/her permit, and again three years later. Failure to comply with this condition shall result in the permanent residence permit lapsing.
(v) SECTION 27(d)
Section 27(c) of the Refugees Act, 1998 (Act No 130 of 1998), provides for a refugee to apply for permanent residence status after five years continuous residence as a refugee in the RSA, if the Standing Committee for Refugee Affairs certifies that the applicant will remain a refugee indefinitely. Applicants must take note of the fact that a permanent residence application will only be accepted if the applicant is in possession of the certification of indefinite refugee status.
(vi) SECTION 27(e)
This category is applicable to foreigners who wish to retire in the RSA as permanent residents. A chartered accountant certification in respect of an applicant under this category, must certify that the applicant has the right to a pension, or an irrevocable annuity, or a retirement account, any of which will give the person a minimum income of R20 000 per month for the rest of his/her life. Alternatively, a foreigner may also qualify for a permanent residence permit under this category, if he/she could produce a certification from a chartered accountant reflecting that he/she has a minimum net worth of R12 000 000, providing an income of at least R15 000 per month.
(v) SECTION 27(f)
This category refers to prospective immigrants who are considered to be financially independent. A permanent residence application under this category will require of the applicant's chartered accountant to certify that he/she has a minimum net worth of R20 000 000. Applicants under this category are also required to pay an amount of R100 000 as a fee to the Department of Home Affairs.
(vi) SECTION 27(g)
A foreigner who falls within the first step of kinship from a South African citizen or permanent resident, may apply for a permanent residence permit under this category. The relatives in question are confined to biological or judicially adopted parents, biological or judicially adopted children, or a spouse. It will be required of the relative who is the South African citizen or permanent resident, to submit a written undertaking with regard to financial, medical and physical responsibility, except where the applicant is the parent of a minor child. In the latter case, a permanent residence permit will be granted on condition that it shall automatically lapse one year after such minor child turns 21 years of age, permanently departs from the RSA, is legally adopted or dies, provided that such foreigner may at any time prior to such lapsing apply for a permanent residence permit in terms of any applicable section of the Act.
*IMPORTANT: No foreigner who obtained a permanent residence permit in terms of section 27(g) of the Immigration Act, 2002, may undertake to "sponsor" another family member who wishes to apply for permanent residence status on the basis of him/her falling within the first step of kinship of the first-mentioned.
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MAY ONE APPLY FOR PERMANENT RESIDENCE STATUS AS AN INDIVIDUAL PERSON IF ONE'S FAMILY/SPOUSE DO/DOES NOT WANT INMMIGRATE TO SOUTH AFRICA?
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Yes. The Immigration Act and Immigration Regulations do not dictate that an application for permanent residence status must be submitted in a family unit context. However, it will be appreciated and understood that the South African Government is obliged to ensure that the family members, especially dependent children, who remain in the applicant's country of origin or normal residence, are financially cared for. For this reason it would be expected of the spouse/partner/
ex-spouse/ex-partner who remains abroad, to acknowledge in writing that he/she has noted the fact that the foreigner has applied for permanent residence status in the RSA and that sufficient arrangements have been made for his/her/their maintenance.
Except for permanent residence applications submitted under section 27(g), the Immigration Act and Immigration Regulations provide for permanent residence permits to be granted to the spouse and dependent children of the principle applicant.
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| IF ONE'S PERMANENT RESIDENCE APPLICATION HAS BEEN APPROVED , WHEN MUST ONE ENTER THE REPUBLIC OF SOUTH AFRICA?
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A permanent residence permit is issued on condition that the holder thereof enters the Republic of South Africa within a period of twelve months, for the purpose of permanent settlement. Failure to comply with this condition may result in the permit being withdrawn.
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ARE REASONS PROVIDED IF THE APPLICATION IS REJECTED? DOES ONE HAVE THE RIGHT TO APPEAL?
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Yes. The Department of Home Affairs is committed to a process of fair administrative action, which complies with the provisions of the Promotion of Administrative Justice Act. If the Department cannot approve an application, the foreigner will receive adequate notice of a contemplated refusal, as well as reasons for the proposed decision. The applicant will be granted a period of 10 calendar days to make representations to the Department to reconsider its contemplated decision. If the decision becomes effective, the person aggrieved by a decision of the Department may appeal against it to the Director-General, who may confirm or modify the decision. If confirmed, the person may appeal to the Minister and, if the Minister also confirms the decision, the person may apply for judicial review to a court of law, which may suspend, reverse or modify the decision in accordance with its rules.
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WHAT HAPPENS IF ONE HAS TO SETTLE IN ANOTHER COUNTRY AFTER ONE HAS OBTAINED A PERMANENT RESIDENCE PERMIT?
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Should a person who obtained permanent residence status leave South Africa for a period of three years or longer, the Department may withdraw the permanent residence permit. However, this period may be extended upon showing good cause and upon prior application to the Department. It is thus of vital importance that a person who finds himself/herself out of the country for a period that may exceed three years, corresponds with the Department. An administrative processing fee of
R63 (US $ 5) is payable.
Certain categories of persons do not risk their permits being withdrawn, regardless of the period of absence from the RSA. These categories are: -
- persons who reside abroad while in the service of the State;
- persons who reside abroad while a representative or employee of a person or organisation of persons resident or established in the RSA;
- persons who reside abroad while in the service of an international organisation of which the State is a member;
- persons who are the spouses or dependent children of South African citizens, provided that such spouses or children reside with such citizens.
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WHAT HAPPENS IF ONE CHANGES ONE'S OCCUPATION AFTER A PERMANENT RESIDENCE PERMIT HAS BEEN OBTAINED?
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Section 25(4) of the Immigration Act, 2002 (Act No 13 of 2002), enables the Department of Home Affairs to attach reasonable individual conditions to a permanent residence permit, whilst Regulation 33(3) of the Immigration Regulations stipulates that a permanent residence permit shall lapse if the holder of the relevant permit materially contravenes any terms and/or conditions attached thereto.
It will be understood and appreciated that permanent residence permits are, in the first instance, granted to foreigners who follow occupations for which a proven demand exists and for which a sufficient number of South African citizens and permanent residents are not available. The Department may therefore attach a condition to a permanent residence permit that the holder of the relevant permit, for example, remain employed in the field of employment in respect of which his/her permanent residence permit was granted, for a period of two years.
There is a difference between a change of occupation and a change of employer. Should a person change his/her employer after having been granted a permanent residence permit, but is still employed in the same profession or field of activity, this would not be regarded as a change of occupation.
An application for permission to change one's occupation must be in the form of a written request, motivating why the permanent resident wishes to change his/her occupation, accompanied by payment in the amount of R1 012 (US $88).
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CAN A PERMANENT RESIDENCE PERMIT BE WITHDRAWN?
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Yes. The Department may withdraw a permanent residence permit in terms of section 28 of the Immigration Act, 2002 (Act No 13 of 2002), if its holder-
- within a period of four years after the issuance of such permit has been convicted of any of the following offences: Treason against the RSA; murder; rape, other than statutory rape; indecent assault; robbery; kidnapping; assault when a dangerous wound is inflicted; arson; any conspiracy, incitement or attempt to commit any of the afore-mentioned offences;
- has been convicted three times of any of the offences listed in (i) above, including the following offences: Corruption; sedition; public violence; culpable homicide; bestiality; malicious injury to property; breaking and entering any premises; theft; receiving stolen property knowing it to have been stolen; fraud; forgery or a forged document knowing it to have been forged; offences relating to coinage; any offence relating to the illicit possession, conveyance or supply of dependence producing drugs; any conspiracy incitement or attempt to commit any of the afore-mentioned offences; as well as any offence of which the punishment may be a period of imprisonment exceeding six months without the option of a fine;
- has been absent from the RSA for more than three years;
- has not taken up residence in the RSA within one year of the issuance of the permit.
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IMPORTANT NOTES
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Any permanent residence permit issued on the basis of false material information or an omission to provide required or reasonably expected material information shall be deemed to be null and void.
The documents that must accompany an application for permanent residence status is listed in the prescribed application form, BI-947, which are available on the Department's website at: www.home-affairs.gov.za. All these documents must be the originals. If the originals are not available, copies may be submitted. However, the issuing authority or a certifying authority or entity of the country of origin must authenticate such copies. If these documents are not in English, a sworn translator must translate it into one of the Republic's official languages and these translations must be certified as correct.
Enquiries regarding permanent residence matters may be made to the nearest Regional Office of the Department of Home Affairs in the RSA, South African Missions abroad or directly to the Director-General, Department of Home Affairs, Private Bag X114, Pretoria, 0001, for the attention of the sub-directorate: Permanent Residence.
Certifications that are referred to in the Immigration Act and the Immigration Regulations, may only be done by chartered accountants who are registered to practise in South Africa. For a list of South African registered chartered accountants, please visit the website of the South African Institute of Chartered Accountants at: www.saica.co.za.
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