The types of permanent residence visas available in South Africa

In the third episode of our Immigration Law podcast series, Lee Masuku and Taryn York, Senior Associates in the Employment Law practice and Immigration Law service offering, discuss South Africa's various permanent residence permit categories, highlighting the legal requirements and the relevant distinctions between temporary and permanent residence statuses for some categories.

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Transcript

Lee Masuku: Welcome to the CDH Conversations podcast. My name is Lee Masuku, a senior associate in CDH's Employment Law department. Joining me in conversation today is Taryn York, also a senior associate in our Employment Law department. As a reminder, both Taryn and I work in the immigration offering at CDH.

Taryn, it really feels like we had our last chat just the other day, but here we are back again to discuss immigration law. Thank you so much for making time to chat with me today.

Taryn York: Thanks for having me. This is the third episode in our four-part Immigration Law Guidelines series for employers. To recap, in episode one, we covered the basics in relation to immigration law compliance for employers.

This was done by outlining the legislative landscape as well as by explaining the immigration compliance obligations of both employers and employees alike.

Lee Masuku: That's right, Taryn. And in episode two, we discussed the types of temporary visas and permanent categories that are available for foreigners, as well as setting out which of those are accompanied by a right to work.

In this episode, we are moving the discussion to permanent residence categories. Once again, while there are a few permanent residents permits available in South Africa, we will be focusing on those that we deal with most frequently. Taryn, permanent residents is a sought-after status for foreigners, even though it is distinct from citizenship.

Let's perhaps kick off the discussion with an understanding of what a permanent residence permit is.

Taryn York: Surely, the hold of a permanent residence permit has all the rights, privileges, duties, and obligations of a citizen say for those rights, privileges, duties, and obligations that a law or the South African Constitution explicitly ascribes to citizenship.

A permanent resident also maintains the nationality of his or her country of origin and does not participate politically in South Africa. So, South Africa allows for the permanent residence of certain non-citizens, provided that they meet certain requirements. These requirements may include a period of continuous residence in South Africa, after some form of temporary residence permit, or a spousal or kinship relationship with a South African citizen or holder of a permanent residence permit.

There are also circumstances where an ongoing employment relationship may also be grounds for permanent residence.

Lee Masuku: Now Taryn, speaking of employment related circumstances for permanent residence permits, perhaps the best place to start is permanent residence based on critical skills. Now in episode two we mentioned that for a temporary critical skills visa, a points-based system is used.

Taryn, can you just take us through whether the same process is used for permanent residents?

Taryn York: Sure. So the points-based system is only used for temporary critical skills work visas and general work visa applications. In terms of the regulations to the Immigration Act, specifically in relation to permanent residency applications based on critical skills, these are assessed based on regulation 24, 4 of the immigration regulations, which focuses on the inclusion of a position on the critical skills list, an individual's post qualification experience of at least five years.

A SAQA evaluation of the foreign qualifications, an individual's registration with a professional body, evidence of employment or job offer in the relevant critical skills category, testimonies from previous employers, and a comprehensive CV and a letter of motivation indicating that the critical skills possessed by the permanent residents applicant will be to the benefit of the South African environment in that the individual intends to operate.

And that relates to the critical skill in question. In other words, the points-based system does not apply to permanent residents' adjudication, based on critical skills. And instead, permanent residents of this nature is assessed moralistically against the regulatory and documentary requirements.

Lee Masuku: Taryn, I find it quite interesting that the legislature would have different regimes for temporary and permanent visas in relation to critical skills.

But again, I suppose this goes into one of the underlying purposes of our immigration policy. Being to ensure meaningful employment for South African citizens in the first instance. That being said, there is another form of permanent residence permit that emanates from temporary status. This is where an individual who applies for permanent residence may do so if they have been the holder of a general work visa for a continuous period of at least five years prior to submitting the application.

However, what must be taken into consideration is that the five-year period used for purpose of the application may not include any time that the applicant has spent in South Africa on another visa.

Once again, when applying, the applicant must present either a offer of permanent employment or a permanent employment contract.

Taryn York: Yes, Lee. Let's move on to a permanent residence permit based on a spousal relationship. Our immigration laws recognize that it is a mechanism to keep the family unit and members together in certain circumstances.

So where foreign national is married to or in a permanent relationship with a South African citizen or a foreigner with a South African permanent residence permit, they qualify to apply for permanent residence based on their spousal relationship. This category applies to both same sex and heterosexual relationships.

In order to apply for a permanent residence permit based on a spousal relationship, it needs to be proven that one has been married or cohabitating for a minimum period of five years.

Lee Masuku: That's right, Taryn. But it's important to note that there are some additional requirements for life partnerships.

This is where, if the permanent residence application is based on a life partnership, a notarial life partnership agreement or contract signed by both parties must be submitted together with the application and that agreement must attest to the permanent relationship having existed for at least two years prior to the application to the exclusion of any other person.

And that neither of the parties is actually a spouse in an existing marriage or permanent relationship. Documentation must also be submitted as proof of the financial support between the life partners towards each other, as well as relating to the extent to which the related financial responsibilities are shared between the two parties.

Taryn York: A similar category of application for permanent residents may be made in respect of a relative as well. In order to qualify to apply, an individual must be a biological relative, at least in the first degree of kinship to either South African citizen or foreigner with a permanent resident's permit.

Children who are legally adopted also qualify to apply for a permanent residence permit on this basis. Lee, the last three permanent residence categories that we will be discussing are all based on the level of one's financial contribution. The first being permanent residence based on one's financial independence at a very high level.

A person in possession of the equivalent of 12 million Rand worth of global net assets may apply for such a permanent residence permit.

Lee Masuku: Yeah, Taryn. And the second category of financial independence related permanent residence is a own business, permanent residence permit. So, you know, we didn't discuss this category in our previous episode, but an own business visa is also possible for a foreigner as a temporary residence visa.

So once an individual is a holder of such a temporary visa, they may apply for permanent residence provided that they can prove that 60% of their workforce is made up of South Africans or permanent residents, that they have invested at least 5 million Rand into the book value of the business, and that they have met certain compliance requirements, including that they're registered with SARS and the UIF and the like.

In addition, Taryn, it is also necessary for an applicant for permanent residence based on own business ownership to obtain permission from the Department of Trade and Industry, and the department must first attest that the applicant's business is in the national interest of South Africa.

Taryn York: Yes, Lee. And the final category for discussion is permanent residence based on retirement. As the name suggests, this involves a situation where a person wishes to retire in South Africa. To qualify for a permanent residence permit based on retirement, an applicant is first required to prove that they receive a lifelong monthly income equivalent to at least R37,000 a month from pensions, retirement, annuities, or property rentals.

Oddly, despite this permit category by its name being associated with elderly foreigners who have stopped working, there's actually no minimum age attached to this permit.

Lee, we've unfortunately come to the end of this episode of our immigration podcast series. Next time we'll meet for our final episode.

Lee Masuku: Yeah Taryn, I can't believe we are already moving towards wrapping up our series, but I look forward to chatting to you next time where we will be discussing employers frequently asked questions in relation to immigration compliance, including the consequences of visa expiry and overstaying. So, it's really not one to miss. I'll see you then, Taryn.

Taryn York: Thanks Lee