Employers are set to face amendments to the legal labour landscape in relation to expatriate employees. The draft Immigration Regulations were published for comment on 14 February and  written submissions to the Department of Home Affairs on the draft regulations must be made no later than Friday 28 February 2014.

Michael Yeates, Director in the Employment practice at Cliffe Dekker Hofmeyr says that the draft regulations usher in the long awaited reform to the immigration laws of South Africa.

“In August 2011, the Immigration Amendment Act, No 13 of 2011 was published. However it did not come into effect due to delays in finalizing the accompanying regulations,” he notes.

Yeates explains that the Amendment Act, which seeks to streamline the process for issuing various permits in the Immigration Act 13 of 2002, has thus remained in limbo since 2011 - much to the frustration of those who seek to take advantage of some of the amendments.

“Some of the most salient changes of the Amendment Act include the proposed amendments to Intra Company Transfer Permits ("ICT permits"). Currently ICT permits are limited to a maximum period of 2 (two) year. This is normally insufficient for most purposes. The Amendment Act will see an increase in the maximum period to allow ICT permits to be granted for periods up to 4 (four) years in total,” he says.

Yeates notes that the Amendment Act will also do away with "quota permits" under which a pre-determined "quota" of persons with scarce and critical skills (as determined by the Minister of Labour) can acquire authorization to work.  From the Amendment Act, the Director General of the Department of Home Affairs will have a wide discretion to determine what constitutes a "critical skill" which is in line with the "National Interest".

“It is anticipated that the Regulations will be finalized and the Amendment Act will come into force during mid-2014,” Yeates says.

“All employers who regularly employ expatriate employees should familiarize themselves with the proposed amendments and regulations in order to consider the impact on their current recruitment and employment practices,” he adds.