Home Affairs Approve 68 “Trusted Employers”, Other Work Visa Applicants Must Expect Delays and High Court confirm the process
Xpatweb hosted a webinar for approved DHA Trusted Employers, to work through the special benefits as well as the unique responsibilities of this Home Affairs initiative. Attendees attended a good representation of the 68 approved companies, and everyone expects the Director General to sign the TES “Memorandum of Understanding” for the scheme to operational by latest 01 March 2023.
This DHA approval allows the trusted employers to get visas in record time and be exempted from various onerous requirements applicable to normal work visa applications. There were 108 applications submitted on time and many more late applications, which the DHA are not currently considering.
Companies and Visa Applications outside the Scheme
The realities for anyone who applies for a South African work visa outside the “TES” scheme remains that they should expect a frustrating process. There are certain Embassy applications which are remarkably quick and efficient, but these remain the exception. It persists the better strategy to expect a challenging process and here are some pointers –
- Submit as soon as possible, so you do not have a position where the application becomes late and there is a “self-created urgency”. You must ensure a first-time correct submission.
- Each application category has very specific requirements in law and Regulations, however, this is the minimum requirement. There is also an additional layer of requirements based on internal adjudication protocols as well as Embassy specific requirements. It is very important that all bases are covered to ensure a first-time correct application.
- The new standard for a South African work visa “submission pack” is that it must be at a litigation ready level. This does not only apply to the content of the application, but also ensuring procedural formalities when doing your submission. We ensure that all our applications are signed off by both an attorney and counsel, as you need to have comfort in your submission where legal escalation is needed.
- Monitor the processing times and immediately escalated once overdue. We typically advise a client to start the legal groundwork a week or two before the deadline. Therefore, once a deadline is missed, you can immediately demand that your legal rights are not infringed by the delay in adjudication of the work visa.
Where the above approach is followed, we currently have overall positive experiences, but the market must be educated in knowing that the days of a simple work visa submission and expecting a timely positive outcome is over. There are the notably exceptions, and the market is very grateful for where the DHA or Foreign Embassy shows efficiency, but that remains the exception.
High Court Agrees on Expeditious Processing
On 20 February 2024, the High Court in Pretoria, granted an order directing the Director-General of the Department of Home Affairs and/or the South African High Commission in the United Kingdom to promptly issue the Applicant with their visa.
The Applicant had applied for the visa in September 2023, but up until the court hearing, she had received no response on her application despite ongoing communication and escalation measures. Consequently, the delayed processing of her application led to the unfortunate separation of a mother from her children and her spouse, as her passport was retained by the High Commission for adjudication of her visa application, leaving her stranded in the UK. As a result, the family experienced tremendous financial and emotional strain, which could have been avoided had the application been adjudicated timeously. In addition, the Applicant was bogarted from rendering her contractual obligations towards the company who made the requisite undertakings in terms of her visa application.
Xpatweb current view on the matter is that whilst legal escalation unfortunate, the importance of getting a work visa timely issued and keeping families together outweighs all other factors. What is interesting to note from the High Court decision, is that the Court ordered not only for the application to be finalised immediately on the same day, but also that the visa is granted in favour of the Applicant, ensuring a positive outcome. Thus, the Court made the decision for the Applicant that the DHA failed, alternatively omitted, or refused to make.
While many remain frustrated with the immigration process and backlogs impact processing times, for applicants who have an overdue application a clear path is available.
