ZEP expiry – there are legal alternatives for Zim nationals and their employers

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Johannes Tiba | Senior Manager | Knowledge and Government Strategies and Corporate Compliance | Fragomen | mail me |


For the many Zimbabwean nationals living in South Africa – and their employers – the upcoming expiry date for the Zimbabwe Exemption Permit (ZEP), has been a cause for major concern.

The ZEP was initially established to allow Zimbabweans in South Africa, legal and illegally living and working here, to come forward and regularise their stay – without the need to apply for regular visas.

Visa background

Originally called Zimbabwe Special Dispensation Permits (ZSPs), these permits were initially issued to alleviate pressure on local asylum processes, as many thousands of Zimbabweans had fled the country due to political, economic, and infrastructural instability.

With hundreds of thousands of these permits granted over more than a decade, there was naturally major concern – and legal debate – triggered by the SA government’s announcement that these ZEPs will expire. While the initial expiry date was January 1, 2023, this was later extended to June 30.

We realise that many Zimbabwean nationals, and their employers, may need alternative solutions to the ZEP conundrum with the expiry date fast approaching. This is why, on 18 May, we held a ZEP Business Breakfast, where expert panellists shared insights on how best to plan for the upcoming expiry date, and how companies should plan to ensure they are complying with South Africa’s complex immigration laws.

We have received many questions regarding immigration and visa processes over the past few years, but this has increased manifold as the deadline for ZEP permits looms closer.

Available options

There are several options for permit holders who want to remain in South Africa. South Africa has several visa application options: Business, General Work, Critical Skills, Study, Section 11(6), and Relative.

Once the application process has begun, until it is finalised, an applicant can stay in the country while awaiting approval/rejection. However, while these visa options have stringent requirements, what many ZEP holders don’t realise is that some of these requirements can be waived – if you apply directly to the Minister of Home Affairs through a legal waiver application.

For example, a domestic worker applying for a general work visa may not be able to meet all the requirements – specifically the idea that her skills are not locally available. However, through a waiver application, they can set out the number of years they have worked with their employer, their closeness to family (South African relatives), the impact on their own family, and the difficulty of securing local workers in the same position.

If the application is successful, even though they may not meet all the requirements, they will still be eligible to apply for a general work visa and be able to stay in the country legally until it is resolved.

Similarly, with a business visa, even though the applicant’s business is required to be valued at R5 million capital, a waiver application could be made to reduce this figure to say, R2.5 million. While this may not apply to ZEP holders, those leaving their home countries due to war or major conflict (such as the Ukraine) can also apply to waive the requirements for certain documentation.

If a Ukrainian wants to apply for a study visa, but was unable to secure their previous academic records due to the conflict, they can apply to waive the document requirements if they can provide other proof of their previous education.

Deadline fast approaching

Employers concerned about their Zimbabwean employees who hold ZEP permits should ensure these employees start the application process (and waiver applications if required) before 30 June. Also, ensure they have the relevant documentation on their employees to show they are in the country legally, and either engage directly with (or help their employees find) reputable immigration advisor.

While it is highly unlikely that all visa applications will be processed by the end of June, as long as the process has begun, applicants are able to legally remain in South Africa pending a decision. With more than 100,000 people applying, there is no way to fast track the process.

While 30 June is fast approaching, human rights organisation, the Helen Suzman Foundation has pushed back against this deadline. The HSF has argued the decision to scrap the ZEP was taken by the Home Affairs department without proper consultation, and that the decision should be referred back to the Minister, Aaron Motsoaledi.

However, at the time of writing, it is unclear if this bid will be successful, which is why we believe it is vital that ZEP holders begin their visa application (and waiver) processes immediately.


 



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