14 February 2022 by Employment Law Alert

The implementation of the long awaited updated Critical Skills List

In terms of section 19(4) of the Immigration Act 13 of 2002 (the Act), a Critical Skills Visa may be issued by the Director-General to an individual who is in possession of “such skills or qualifications determined to be critical for the Republic from time to time”, subject to meeting certain requirements. The issuing of a Critical Skills Visa is however dependent on whether the individual’s skills are listed on the Critical Skills List that is published by the Minister of Home Affairs (the Minister) from time to time.

On 2 February 2022, the Minister, Dr Aaron Motsoaledi, published the updated Critical Skills List (2022 List), outlining the current skills shortages in South Africa, after concluding consultations with various stakeholders in business, academia, and government. The 2022 List replaces the initial Critical Skills List that was published by the Minister on 3 June 2014 (2014 List) in its entirety.

Unlike the 2014 List, the 2022 List provides a clear indication of the actual NQF Level that is required by an applicant in order to qualify for a Critical Skills Visa. Below are just some examples of South Africa’s current skills shortages:

  • Director (Enterprise /Organisation) Chief Executive Office, Managing Director- NQF 9;
  • Quality Systems Manager - Master’s Degree: NQF 9;
  • Air Conditioning and Refrigeration Mechanic - NQF Level 3;
  • Corporate General Manager (medium enterprises or larger) - Master of Business Administration: NQF 8;
  • Metal Machinist - NQF Level 3;
  • Data Scientist Master’s Degree - NQF 9;
  • Programme or Project Manager - Master’s Degree: NQF 9;
  • Air Traffic Controller - NQF Level 4;
  • Millwright - NQF Level 4;
  • Industrial Engineering Technologist - NQF Level 6;
  • Civil Engineering Technologist - NQF Level 6;
  • Multimedia Designer - NQF Level 7;
  • Internal Auditor - NQF Level 7;
  • Corporate General Manager - NQF Level 8;
  • Programme or Program Manager - NQF Level 8;
  • Physicist - NQF Level 9;
  • Chemist - NQF Level 9; and
  • University Senior Lecturer - NQF Level 10.

In addition to the publication of the 2022 List, on the same day, a Ministerial Immigration Directive (the Directive) was published by the Minister. The Directive deals with inter alia the transitional arrangements in relation to the 2014 List and the 2022 List.

In terms of the Directive, any Critical Skills Visa that was previously issued in terms of the 2014 List shall remain in force and effect for a determined period in accordance with the terms and conditions under which the visa was issued to the applicant. A visa issued in terms of the 2014 List may however only be renewed in terms of the 2022 List if the applicant meets the prescribed requirements of the 2022 List:

  • applications already submitted to the Department of Home Affairs prior to 31 January 2022 shall be processed in terms of the 2014 List including any appeals arising out of such applications; and
  • no new applications in terms of the 2014 List shall be accepted with effect from 1 February 2022, except in relation to applicants who already secured an appointment at the Visa Facilitation Centre or South African High Commission prior to 1 February 2022.

Unlike the 2014 List, the Directive also specifically states that the Department of Home Affairs will no longer issue a 12-month visa to applicants who have not secured or received an offer of employment. In other words, all Critical Skills Visa applications that are made in terms of the 2022 List must be supported by an actual offer/contract of employment. In addition, applicants who choose to reference their post-qualification experience are required to submit additional proof of vetted work experience, which must be verified by reputable institutions such as MIE or Sterling.

The Directive also contains some good news for 2014 Critical Skills Visa holders. They may now apply for permanent residence from the date upon which they qualify to apply.

While the publication of the 2022 List is welcomed, it is important for employees (currently in possession of a Critical Skills Visa in terms of the 2014 List) as well as their employers to review the 2022 List in order to confirm whether the employee’s skills are contained on the 2022 List. This is crucial in order to determine whether the employee’s current Critical Skills Visa can be renewed. Employers are also encouraged to consider the 2022 List as they may find that they are now able to fill any skills shortages they may have with foreign nationals, subject to meeting the requirements, as the 2022 List now contains several skills that were not previously provided for.

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