Expats returning home – visas, buying property and potential pitfalls

An increasing number of expats are making the decision to come home after living and working abroad, and estate agents in many areas are reporting that they are fielding a growing number of queries from home-sick South Africans.

MODERN CONVENIENCE: Homes like this spacious duplex in Lynfrae in Cape Town’s southern suburbs are popular with expats. Situated in a security complex with 3 /4 bedrooms, fitted kitchen, open plan living area and double garage, it is on the market for R3.95 million.

Jill Lloyd, Area Specialist for Lew Geffen Sotheby’s International Realty in Claremont and Lynfrae says that there has definitely been a notable increase in queries from expats in Cape Town’s Southern Suburbs in the past two years, with the most sought-after properties being secure family homes with three bedrooms and sizeable gardens in the R3.5 million to R5m price band.

“Most of the expat buyers we deal with are in their mid-thirties, returning home after a decade of broadening their horizons and gaining work experience.

“However, by that age, many are married and often return with a foreign spouse and school-age children in tow.

“And this,” says Lloyd, “is where coming home can get complicated and they can be faced with a marathon of hurdles, especially if they haven’t done their homework.”

Most of us are aware of South Africa’s contentious new visa laws which are seen to be negatively impacting on tourism. However, these stringent regulations can also significantly impact South Africans, especially those who return home from living abroad married to foreign nationals.

Whilst some of the amendments to the Immigration Act are constructive rather than obstructive, these apply mostly to short stays with a variety of temporary Visitor’s Visa options which allow foreigners to work in South Africa for short periods which has greatly benefited industries like film and entertainment.

However, things are not quite as simple for foreign nationals who want to live and work in South Africa for an extended period or even call it home.

Stefanie de Saude, South African Immigration and Nationality Law Specialist and Director of De Saude Attorneys Incorporated says that whilst negotiating the labyrinth of visa laws is never simple, it can be particularly daunting and involve more administrative hoops when the proposed arrival on African shores is more permanent than a beach holiday.

She advises: “The best way to prevent being tripped up by the minefield of potential pit falls is to do one’s homework as early as possible; even before the decision to move continents has been finalised.

“Many people simply seek advice from friends or travel agents and, more often than not, it’s incorrect and when life-changing decisions are at stake, misinformation can have far-reaching consequences.

“I strongly advise that they also consult an immigration attorney who will decipher all the new amendments and advise on the best course of immediate action as well as what might be required further down the line.”

There are several visa options for married applicants moving to South Africa and, without the correct advice, it can be confusing.

According to de Saude, the best option for foreign spouses wishing to work and live in the country is the visitor visa with work/own business/study authorisation known as the “Spousal Visa” and/or permanent residence on the basis of being married to a South African.  The crucial factor here is the length of time the couple has been married.

“If the foreigner wishes to remain in South Africa permanently and has been married to the South African for five years or longer, he/she qualifies for permanent residence, but this can take up to two years to process.  The foreigner must then initially apply for the temporary Spousal Visa and ensure that it is valid at all times during the processing of the permanent residence. “

“If the applicant wishes to work and live in South Africa but has been married for less than five years, he/she must apply for the Spousal Visa which takes six to eight weeks to process. It not only allows foreign spouses to work upon arrival in South Africa, it also  allows them to bypass the rigorous requirements of other work visa applications which are based on the underlying principle of protecting jobs for South African citizens and permanent residence holders.”

An applicant who has been married for longer than five years and who acquires permanent residence on this basis has almost every right of a citizen (save for the rights to vote and to a passport).

De Saude says that a stumbling block often encountered with other work visa types which require endorsement is that local employers often balk at the prospect of taking on the responsibility of a foreign employee and the time-consuming and convoluted application process for work visa applicants.

Lew Geffen, Chairman of Lew Geffen Sotheby’s International Realty, says that couples who have been married for less than five years face are therefore often faced with several more frustrating stumbling blocks, obtaining finance being one of the most frustrating unless they buy their home with money transferred from abroad.

“If they are a single income family due to the foreign spouse not working, they will probably need to lower their sights and perhaps even consider a different area as the bond application will be calculated on one person’s earnings rather than two.

“They will also be at a disadvantage as an applicant’s credit rating is a key factor and, regardless of how solid their credit history is abroad, it doesn’t count for anything locally.”

Geffen adds: “What many returning South Africans don’t realise is that if they have been living abroad for an extended period, regardless of how successful they were or how good their credit history overseas, they essentially have start all over again when they arrive here.

“One would think that a solid credit rating from an international bank, even accompanied by reference letters would count for something, but the banks here disregard them. My advice to expat clients would be to immediately start building a credit history by opening retail accounts and ensuring that instalments are paid on time if not early.”

However, whilst some of these issues can be daunting and even discouraging there is a glimmer of faint light at the end of the long tunnel after the High Court of South Africa`s Western Cape Division handed down a judgement in January this year by overturning a 2014 amendment which stipulates that all new visa applications and changes in visa status have to be applied for in the country of origin.

De Saude says that this amendment was particularly disruptive and inconvenient for foreigners who had come to South Africa to settle down with their families. 

“The ruling on 29 January in the case of Stewart v Minister Of Home Affairs , served not only to clarify an issue that has caused much confusion with both applicants and home affairs officials regarding the need for foreigners to back to their countries of origin to apply for a new visa or even a change visa in status.   The case of Stewart v Minister of Home Affairs also opened the door for other applications to be submitted in the country without the need for the applicants to leave the country.”

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