The new Immigration Regulations, which came into operation in May of this year, have sought to actively encourage Employers to recruit locally and to only source a skill if it is absolutely not available in the Republic.

In so doing, the Department of Home Affairs has joined forces with the Department of Labour in South Africa in terms whereof a "Certificate of Compliance" must first be obtained from the Department of Labour, before the application for the work permit may be submitted by the applicant abroad. The intention here is to first ensure compliance by the Employer with the South African labour standards (eg. Safety, UIF, COIDA Fund), and this includes a visit to the Employer's premises to ensure that it has suitable working conditions for its employees.

The applicant is required to submit the following documents to the Department of Labour, for processing, in order to obtain a "Certificate of Compliance":

*   A signed copy of the Department of Home Affairs' Application Form

*   The applicant's portrait photo (identity document size)  

*   Job description of the vacancy applied for

*   SAQA Certification of Evaluation

*   Power of Attorney (if the employer is represented by a lawyer or immigration agency)

*   A duly completed and signed contract of employment

*   Workplace Skills Plan (WSP) for the designated employer

*   Employment Equity Plan (EEP) for the designated employer

*   Copy of a job advert (National Newspaper)

*   For NGO's/CBO's report: written Report from Traditional Leaders/ Community Leaders/Ward Councilors/Community based organization and NGO's (especially in Agricultural Sector) giving evidence as to labour search

*   Pea's report: Written Report giving evidence as to labour search from, at least, one relevant private recruitment agency, e.g. KELLY, PAG etc

*   Sectoral Organizations/Professional Bodies Report: written Report giving evidence as to labour search from sectoral organizations/Professional Bodies

*   Interview notes: Selection interview notes by the employer indicating the rationale for recruited local citizens not being suitable for the vacant post or reasons for the locals not being considered at all

*   Copies of any Notices issued to the employer occasioned by a visit by the Department of Labour to the employer premises, and any follow ups hereto  

To comply with our Immigration Regulations, the "Certificate of Compliance", when issued, is required to state that:

• despite a diligent search, the prospective employer has been unable to find a suitable candidate with qualifications or skills and experience equivalent to those of the applicant;
• the applicant has qualifications or proven skills and experience in line with the job offer;
• the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or employees occupying similar positions in SA;
• the applicant has furnished proof of qualifications evaluated by South African Qualifications Authority.

What the new law has omitted to state, however, is how long this "Certificate of Compliance" is valid for. A police clearance certificate, for example, is valid for 6 months. In the circumstances we should proceed on the basis that it is valid for a reasonable period, taking into consideration the employment sector within which it is applied for.

The immigration Regulations, in addition, have increased employer responsibilities with regard to the General Work visa, to the extent that employers are now required to provide certain additional, written, undertakings to the Department of Home Affairs:

• accepting responsibility for the costs relating to deportation of an applicant and any dependant family members (if applicable);
• Instead of paying repatriation deposit upon application for a visa, employers are now required to ensure and make guarantees that their foreign employees will comply with the terms and conditions of their visas and leave the Republic upon termination of contract or employment or expiry of the visa. Costs of deportation may be demanded based on guarantees
• accepting responsibility to ensure that the applicant has a valid passport at all times;
• to inform the Director General of Home Affairs if an applicant is no longer in its employ.

Nikki Gerneke, Partner

Contact: 021 419 6495 or gerneke@wylie.co.za