Home affairs minister Aaron Motsoaledi has moved to cancel a waiver that allowed some foreign-born graduates to stay in SA indefinitely without first securing a permanent job or showing evidence of work experience after an official heard about it in the media.
A department spokesperson said Motsoaledi had not been aware of the regulation, despite it being in place since 2016. The government moved on Monday to cancel the waiver, which it said created a loophole in which people were granted residence rights before they had met Immigration Act requirements.
The waiver allowed foreign nationals who studied and obtained degrees or other qualifications in skills that were regarded as “critical” to apply to stay in SA permanently without having a job or five years’ work experience in the country.
Usually immigrants on critical skills visas would need employment and five years’ experience to apply for permanent residency, similar to the situation in other countries such as the UK.
The department told Business Day the waiver was in breach of the Immigration Act because it was not supposed to be in place indefinitely. It was creating a loophole in which students were being granted residency before even graduating with a critical skill.
A list of what are considered critical skills is gazetted by the department of home affairs annually and focuses on areas where SA is struggling to produce enough graduates.
The most recent list includes data scientists, cybersecurity experts, certain mechanics, engineers, accountants and agricultural managers.
Motsoaledi’s move to tighten immigration rules for foreigners who study in SA follows a controversial decision in December not to renew special dispensation permits first given to 200,000 Zimbabweans in 2009, allowing them to live, work and study in the country.
The government said at the time that holders would have a 12-month grace period until the end of 2022 in which they could apply for more conventional visas, such as work permits, that they might have been entitled to. There was more controversy when it emerged that those who weren’t able to show that they had already applied by the end of 2021 faced being denied key services such as access to bank accounts.
But the original decision still stands, meaning Zimbabweans who have been in SA for more than a decade and have been working as waiters, e-hailing drivers, teachers, nurses and in garden services still face losing residency rights at the end of 2022 unless they meet much higher requirements for a work visa. Campaigners worry that inefficiency at home affairs means many will not be able to regularise their stay by 2023.
The rule issued on Monday will probably apply to a far smaller number of people: students who can afford to study specific qualifications in SA.
Siyabulela Qoza, spokesperson for the department, said: “The minister was not aware of the waivers until the director-general heard about it on one of the SABC radio stations.” An investigation then followed.
Qoza said the oversight has meant that permanent residence status was granted to graduates who did not comply with requirements as set out in the Immigration Act.
“More alarming, it allowed foreign graduates to apply for permanent residence before they acquired the degrees.”
Legal advice given to the department was that the Immigration Act does not allow any waiver to be granted “indefinitely” and it was therefore unlawful and irregular, Qoza said.
Vote winner
While the department says it just wants to standardise immigration requirements by removing exceptions granted to some, the moves have been met with the perception that the government is yielding to xenophobic sentiment, which is seen as a vote winner.
In the local government elections in November, ActionSA, led by Herman Mashaba, won 90 local government seats. The former mayor of Johannesburg is widely known for speaking out against illegal immigrants, and made that a part of his campaign, even though immigration is a national government function.
Two weeks ago, EFF leader Julius Malema, who has previously spoken out against xenophobia, arrived at Pretoria restaurants and demanded that owners reveal the nationality of their staff.
And last week, Bloomberg reported that Zimbabwean nationals living in SA are being threatened and coerced into leaving the country.
Qoza said: “The steps taken by the minister have nothing to do with clamping down on immigration but to correct a clear illegality and strengthen the immigration laws in SA.”
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