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Employers with Foreign Teachers on Critical Skills Visas and Quota Work Permits

Posted: 16-05-2017

Pitfalls and Pressure Points

Since 2006 the South African Government has been issuing Quota Work Permits to foreign teachers of scarce subjects so that they can work in South African Primary and High Schools.

In May 2014 the Minister of Home Affairs signed new regulations concerning Quota Work Permits, which became effective on 25thMay 2014. From that time, new Quota Work Permits were not issued. They were to be replaced by Critical Skills Visas, which will be valid for up to five years (as were the Quota Work Permits).

The list of Critical Skills has now been published, click here for the link (http://www.dha.gov.za/images/immigration_critical_skills.pdf), Teachers have been left off the Critical Skills list completely. This means that as Quota Work Permits expire, the teachers will no longer be able to work legally in South Africa.

Employers should take note of the following:

  1. If you are presented with a Quota Work Permit dated after March 2014 please view it with suspicion, and check the validity with your nearest Home Affairs Office. You can employ the applicant in the interim if you wish, but his contract of service should state that the appointment is Temporary until Home Affairs has validated his Quota Work Permit.
  2. Teachers who have been in South Africa legally for five years or longer can apply for Permanent Residence. However, this can take up to two years to be approved. During this period the teacher needs a Work Permit or Visa in order to work legally
  3. Teachers whose Work Permit or Visa expires cannot be sacked. Employers must follow due process and retrench them because they are not able to work legally. We expect that SACE will refuse to renew Foreign Registrations once the Quota Work Permit expires, but the employer must still follow due process in terminating foreign staff as the Courts have ruled that employees are protected by the Labour Relations Act even if they are working illegally in South Africa!
  4. Should a teacher who has a Quota Work Permit be employed we strongly recommend that the school offers a fixed term contract which terminates at the same time as the Quota Work Permit expires.
  5. Exceptional Skills Visas will still be issued. These used to be Work Permits for a year, and were issued where the employer could prove that they were unable to find a South African with suitable skills. It may be possible to get some of the Quota Work Permits changed into Exceptional Skills Visas, but there are complications involved. The Employee cannot make the application - it must be done by the employer. If you need to go this route please speak to Alison.
  6. International Schools - that is those set up primarily for the children of expats working in South Africa - will be able to bring in teachers to work for them on a Visitors’ Visa, but no other school will be permitted to do this. Anyone found working on a Visitors’ Visa will be deported and declared undesirable - they may well not be able to return to South Africa for twelve months or longer.

It is possible that the omission of Teachers from the Critical Skills list will be amended. The list appears to have been rather hurriedly assembled, and there are a number of anomalies in it - for instance, with the old Quota Work Permit the regulations stated how many permits would be issued each year, there are no such limitations on the new Critical Skills list. We have asked a firm who specialize in Immigration to advise us when teachers are added to the critical skills list.

In the meantime, employers should assume that foreign teachers Quota Work Permits will not be renewed as Critical Skills Visas.

Those who qualify for Permanent Residence should make application without delay, and hope that they are approved before their Quota Work Permit expires. There is a move to force foreigners to reside in South Africa for ten years before their applications would be considered, rather than the current five years. Although this has not been implemented now, it is still being considered and might be brought back to the table at any time.

Should you have any questions, please feel free to speak to Alison, if she cannot answer the question she will put you in touch with a firm specializing in Immigration.



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