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COVID-19: What you should know about employment of Foreign Nationals

The announcement by President Cyril Ramaphosa on regarding the evolving COVID-19 epidemic and emergency measures, has left many employers uncertain on the status of their expatriate employees and what should be done during the period of ‘lockdown’.

Read with subsequent announcements by DIRCO and guidance from the Department of Home Affairs and other stakeholders; we are indeed in unchartered territory, where everyone has little choice but to work together, keeping South Africa safe whilst minimising the potential devastating impact on the economy.

The President emphasised in his Address that “Never before in the history of our Democracy have we been confronted by such a severe situation”.

Many expatriates and their employers are not spared by the complexities.

Why expatriates are important?

The employment of expatriates in South Africa, can generally be classed into various work visa categories.

These categories have in common that they are there to support and strengthen South Africa as a business and investment destination, strengthen critical skills in South Africa and otherwise allow employers to make business important appointments where the required resource is not available to South Africa.

These employees are mostly a critical cog in the wheel of their employer, which becomes especially important in times of complete economic uncertainty.

We note below some practical questions and answers for foreign nationals on work visas and their employers:

Visa expires of expatriates from ‘high risk’ countries currently in South Africa

Expatriates from “high risk” countries currently in South Africa, and whose visas are due to expire, are advised to apply for the extensions of their visas, within South Africa to ensure that they remain compliant.

Certain of these renewals, such as inter-company work visa renewals, corporate visa holders and those on short terms business visas; are normally not allowed in South Africa; but these are extraordinary times.

Travel to their home countries will mean they will not be allowed to come back to South Africa, as the foreign South African missions in these “high risk” countries are prohibited from issuing visas.

This is a special process and must be done through the correct Home Affairs channels, and we recommend that employers start this process as soon as possible.

Visa expires of expatriates from ‘medium risk’ countries currently in South Africa

Expatriates from “medium risk” countries currently in South Africa, and whose visas are due to expire, are equally advised to renew within South Africa.

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Whilst the foreign South African missions can process these applications, there is the requirement of a “certificate of clearance from the virus”, which may cause delay.

Also, the employer and expatriate run the risk that medium risk countries may be escalated to high risk.

Again, we recommend that the Department of Home Affairs should be approached upfront for special dispensation.

Passport expires of expatriates from a ‘restricted’ country

Any passports that have expired or are due to expire, may be renewed at the appropriate Consulate or Embassy within South Africa, and visas currently endorsed into an expired or full passport, will require an application for a ‘transfer of visa’ to be made in order for the visa to be endorsed into the new passport once issued.

This can be done in South Africa.

Expatriates are reminded to ensure that they apply for passport renewals timeously as any subsequent visa validity will be subjected thereto.

New work visa acquired but expatriate has not entered South Africa

Any foreign national who has visited high-risk countries in the past 20 days will be denied entry into SA; and travellers from medium-risk countries will be required to undergo “high intensity screening” before entering SA.

Foreign nationals from both “medium and high risk” countries who used to enter South Africa visa free, will now be required to apply for a visa to be considered entry to South Africa; this application will require inclusion of a health indication with a “certificate of clearance from the virus”.

Contradicting to the above, and subject to further clarification from the Department, work visas that have been issued from these countries, exclusive of China and Iran, and not yet activated through ports of entry, have not been revoked or cancelled.

However, these nationals remain banned from South Africa until same has been lifted.

We recommend that an upfront confirmation process be adopted with the Department of Home Affairs or relevant Foreign Mission, as opposed to ‘fingers crossed’ that entry will be allowed.

Expatriate on home leave, in a ‘medium and high risk’ country

The Minister of the Department of Home Affairs indicated that flights are subject to an “advanced passenger process” whereby a passenger log of each flight is submitted to the Department and undergoes a verification process between the travel origin and connecting flights for each passenger coming to South Africa.

This will undergo further review before disembarkation into South Africa to assess if any passengers may not be permitted to enter South Africa.

We recommend contact is made prior to making travel arrangements to ensure entry into the country will be allowed.

Employers and expatriates should take special note hereof and make sure that they get clearance upfront, thus not risk being stranded in a system, currently in a state of flux.

About to start the process of new visa of work visa

Where new resources are required for business and/or for projects purposes, it is recommended that the expatriate, supported by the South African employer, still immediately proceed with the preparation (and filing where possible) of the required work visa application(s) until further instructions have been received by the Department of Home Affairs.

No one knows how long these measures will apply and with less travel visas issued; this is an opportune time to start the process.

Albeit restrictions have been imposed on the travel of foreign nationals from “medium and high risk” countries; the actual filing of visa applications have not been impacted in all countries.

Understandably, as the economic impact of these restrictions must be limited, so it makes sense to use this period to get necessary approvals now.

This prevents being caught in an expected rush later when restrictions are lifted and allows business to get back to normal as soon as restrictions are over.

UK is now closed, china remains open

The VFS office in the United Kingdom is now formally closed, however, China remains open for applications.

Where enough business or personal case exist, employers and expatriates caught by these closures, often immediate and unexpected, can always approach the Department of Home Affairs directly through the correct channels.

There is also always a discretion of the South African Embassy, and until clear instructions have been received by them from the Department.

Where applications are being processed, applicants will be able to make the required arrangements in order to proceed with travel to South Africa as soon as the travel bans have been uplifted.

Again, it is therefore imperative that applications are not delayed but filed (where permitted) as soon as possible as we expect an influx of applications once the travel bans are uplifted and some advance planning will ensure you are ahead of the rush.

AUTHOR: Marisa Jacobs, Managing Director at Xpatweb