Under current South African immigration law, a company can transfer its employees to a company that is “operating in South Africa.” This is on condition that the two companies are in a holding, subsidiary or “affiliate relationship.”
There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term affiliate relationship is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.
The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee’s offshore contract and proof that he or she has the skill needed for the assignment in South Africa.
All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.
South Africa’s permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (excluding a preschool), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooled, he or she needs a long-term visitor permit to accompany the holder of the transfer permit.
For purposes of residence in South Africa, the Immigration Act recognizes nonformalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term “spouse” refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.
There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident.
Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time.
The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.
Chris Watters is a member of the Alliance of Business Immigration Lawyers.
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Republished with permission. © 2013 ABIL. All Rights Reserved.
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