legal regimes governing mode 4 in sadc member states esther katende – magezi...
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LEGAL REGIMES GOVERNING MODE 4 LEGAL REGIMES GOVERNING MODE 4 IN SADC MEMBER STATESIN SADC MEMBER STATES
Esther Katende – Magezi [email protected]
Introduction: Why the Study?Introduction: Why the Study?• Analsye the Immigration/ Labour Regimes in Member States
compare with those of other States?
• To what extent do States’ current GATS Mode 4 commitments reflect the applied regime?
• To facilitate a more informed discussion on Mode 4 in the SADC services negotiations.
Mode 4 – TIS Protocol:- Supply of a service by a service supplier through the presence of
natural persons in the territory of any other State Party. (Art 3:2:d)
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Introduction: What does Study Cover? Introduction: What does Study Cover?
1. Applied Regime in terms of:- categories of persons and skill levels admitted, - numerical and other quotas, - existence of labour market tests, - Examined the periods of stay permitted.
2. Mode 4 categories in the applied regime
3. GATS commitments viz the Applied Regime
Caveat:
-Study based on desk research
-Work in progress
-Follow up with delegations during
and after TNF
Lay Out of PresentationLay Out of Presentation
1.1. IntroductionIntroductionWhy the Mode 4 Study? Why the Mode 4 Study?
2.2. Preliminary FindingsPreliminary Findings
3.3. Emerging RecommendationsEmerging Recommendations
Some States Specify Categories of Skills Needed in the LawSome States Specify Categories of Skills Needed in the LawStateState Categories Permitted in State LawsCategories Permitted in State Laws
DRC Excludes almost all top executive jobs.
South Africa Exceptional skills permits for pre-determined select skills.
Malawi Permits key positions in investment.
Swaziland Only permit medical, dental, legal, surveyors, architects, pharmacists, veterinary surgeons, engineers, nurses, physiotherapists, accountants and chattered secretaries.
Zambia - Exceptionally skilled persons. Human resource jobs only for Zambians.- Business Permits – Consultants, installers and servicers, attending meetings.
Zimbabwe Professionals offering scarce skills, journalists on assignment, short contract personnel, foreign researchers.
No specified categories noted in:No specified categories noted in: Angola, Botswana, Lesotho, Mauritius, Mozambique, Namibia, Seychelles & Tanzania.
Some States Have Quota Restrictions in Their Laws
StateState Types of Quotas in State LawsTypes of Quotas in State LawsAngola In enterprise of more than 5 employees, 70% should be nationals unless
there are no local employees for position.
Mozambique Large firms – up to 5% of total workers. Medium – 8%. Small – 10%.
DRC - Max foreigners of total work force in DRC should be 15%.-Max % of foreigners that can work in given sectors existing.- Majority of top management jobs reserved for locals.
Lesotho - Practice – Textile & Garment – 1 expatriate per 20 locals. Retail – one expatriate per 5 locals.
South Africa - Quota permits for pre-determined quota in an occupation.- Exceptional skills permits for pre-determined select skills.
Tanzania -Foreign investors to hire 5 foreigners in start up period.-Can seek exemption from Tanzania Investment Centre
No Quotas noted inNo Quotas noted in: : Botswana, Malawi, Mauritius, Namibia, Seychelles & Zambia.
Periods of Stay Vary From 7 Days to 10 YrsPeriods of Stay Vary From 7 Days to 10 Yrs
StateState Short Business Short Business VisitVisit
Standard Work VisaStandard Work Visa Longer Work VisaLonger Work Visa
Angola 7 days & 30 days 12 months Depends on investment
Botswana Left to Discretion Depends on Board Left to Discretion
DRC 1 year 1 – 2 years Left to Discretion
Lesotho Depends on Visit 2 yrs Left to Discretion
Malawi 30 days 6 mths – 2 yrs 5 yrs
Mauritius 9 months 3 yrs / per contract Depends on permit
Mozambique 30 days 90 days – 5 yrs Longer than 5 yrs
Applied Regime – Standard Periods of Stay in the LawApplied Regime – Standard Periods of Stay in the LawStateState Short Business VisitShort Business Visit Work VisaWork Visa Longer Work VisaLonger Work Visa
Namibia 90 days max pa. Depends on permit Left to discretion
Seychelles Practice - 12 mths Left to discretion Left to discretion
South Africa Left to Discretion 1 yr, 2 yrs, 3 yrs, 5 yrs Based on Application
Swaziland Left to Discretion Depends on Immigration. Max 5 yrs
Depends on Immigration. Max 5 yrs
Tanzania Left to Discretion 3 yrs 5yrs – 10 yrs
Zambia 30 days – 6 mths in any 12 mths.
2 – 5 yrs 10 yrs and more.
Zimbabwe 6 wks max 3 yrs 5 yrs
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Labour Market Tests Exist in all States Save MauritiusLabour Market Tests Exist in all States Save Mauritius
StateState Labour Market Test in LawsLabour Market Test in Laws
Botswana - Whether opportunities of nationals are affected by foreign employment.- Must show arrangements to train nationals to replace foreigner.
DRC -Foreign job must be advertised in placement office. If unsatisfied after 30 days, can submit application to employ foreigners.- Exemption from employment of Congolese given on proof that foreign jobs will be done by locals within 2 years.
Lesotho - There should be no locals to take on position.- Practice - foreigner must mentor local employees and must submit a localisation plan for period of permit held.
Malawi Position must be advertised and localisation policy existing. There must be a Malawian understudy.
Mauritius None noted.
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Applied Regime: Labour Market TestsApplied Regime: Labour Market Tests
StateState Labour Market Test in State LawsLabour Market Test in State Laws
Namibia Position should not be one in which several persons are already engaged in Namibia to meet the requirements of the locals.
Seychelles Consider availability of persons already in Seychelles, protection of local interests and social and economic benefit to Seychelles.
South Africa -No SA citizens with relevant skills. - Unskilled and semi skilled generally not permitted.
Zambia - No Zambians to do job. Should mentor locals.- Proficiency tests on discretion of Immigration.
Tanzania,Mozambique,& Angola
There should be no locals ably qualified to do the same job.
Mode 4 CategoriesMode 4 Categories
WTO States are commonly using certain categories to specify commitments taken on for the different types of natural persons.
- Business Visitors- Independent Professionals- Intra Corporate Transferees- Contractual Service Suppliers
Why Use M4 Categories?Why Use M4 Categories?- Facilitates transparency in negotiations.- Easier for interpretation of commitments.
Mode 4 CategoriesMode 4 Categories 1. Business Visitors1. Business Visitors
– Seek entry to: set up commercial presence, negotiate sale of a service, attend business meeting, engage in after sale services.
– No remuneration from source in host country.– Not engaged in direct sales to public.– Usually facilitating future trade.
2. Intra Corporate Transferees . Intra Corporate Transferees – Employees of foreign service supplier.– Who has commercial presence in host country.– Are transferred from parent company abroad.– To work within the company in the host country.– Usually access is limited to managers, executives, & specialists.– Usually commitments cover employment for 1 year. 12
M 4 CategoriesM 4 Categories3. Contractual Service Suppliers3. Contractual Service Suppliers
– Employees of foreign service supplier who has no commercial presence in host country.
– Present in host country to provide service.– Pursuant to contract between their employer abroad and a local client in host
country.– Are paid by their employer abroad not local client.
4. Independent Professionals4. Independent Professionals– Self employed persons.– In host country to supply a service to local client.– Pursuant to service contract.
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Permits in Applied Regime as They Relate to Mode 4 CategoriesState Business Visitor Independent
ProfessionalsContractual Service Providers
Intra Corporate Transferees
Angola Short Term & Ordinary Visa
Work Visa Type B Work Visa Work Visa
Botswana Work Permit Work Permit Work Permit Work Permit
DRC Work Permit Work Permit Work Permit Work Permit
Lesotho Work Permit Work Permit Work Permit Work Permit
Malawi Visitors PermitTemporary Employment P
Business Residence P Business Residence P Business Residence P
Mauritius Short Term Occupation PBusiness Visitor Permit
Occupation Permit Occupation Permit Work Permit
Mozambique Business Visa Work/ Resident Visa Work/ Resident Visa Work/ Resident Visa
Namibia Business Visa Employment Permit Employment Permit Employment Permit
Seychelles Gainful Occupation Permit
Gainful Occupation P Gainful Occupation P Gainful Occupation P
South Africa Business Permits Work Permit Work Permit Intra Company W .P
Swaziland Class E, D Class H, F, D, G Class A, ,B, D, F, G All Classes
Tanzania Class A, Class A, C Class B, C Class B, C
Zambia Business Permit Employment P Employment P Investment Permit
Zimbabwe Business Visa Temporary Employment Temporary Emp P Investor Residence P
GATS Commitments Compared to Applied RegimeGATS Commitments Compared to Applied Regime
• Member States agreed to offer each other better liberalisation commitments than GATS. (Art 16 Negotiating and Scheduling Guidelines).
• Hence need to analyse GATS commitments and compare it to applied regime.
GATS viz Applied Regime – Initial FindingsGATS viz Applied Regime – Initial Findings• GATS commitments provide an incomplete picture of extent of possible
movement of Mode 4.
• In some States, there are restrictions in GATS that do not exist in laws.
• Most GATS commitments permit specific categories of persons which is not general position in laws.
• Localisation requirement existing in several GATS commitments and in most laws.
• Sectors mostly committed to in GATS are part of the six priority sectors.
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GATS Compared to Applied RegimeGATS Compared to Applied RegimeStateState GATSGATS Applied RegimeApplied Regime
Mozambique No quotas in GATS. Quotas (5%, 8%, 10%) in firms.
Namibia Limited to managers & experts for foreign investment.
No such limitation.
South Africa No quotas. Quotas in exceptionally skilled permits.
Mainly highly skilled persons Mainly highly skilled persons
Excludes economic needs test. Labour market test used.
Swaziland Specialists, senior qualified Persons & Professionals.
On professionals- only select professionals are permitted.
Tanzania - No quota. 5 person quota existing.
- Senior managers with skills not available in Tanzania.
No mention of skills.
Zambia Management and expert jobs for foreign investment.
No such requirement.
Must train locals. Must train locals too.
Zimbabwe Intra corporate transfer of executive, senior management & specialists subject to no skills in local market.
Professionals with scarce skills subject to absence of skills in local labour market.
GATS Mode 4 Commitments Compared to Applied RegimeGATS Mode 4 Commitments Compared to Applied Regime
StateState GATS GATS ExistingExisting LawsLaws
AngolaAngola Banking – GATS requires 50% minimum employment of locals.
70% in enterprise of more than 5 employees.
Tourism – hotels limited to senior managers & specialists. Restaurants – Directors in addition.
No restrictions on categories of persons and skills in Angola laws.
BotswanaBotswana - Restricts skills to managers, executives, specialists, highly qualified professionals.
No restriction to managers, executive & specialists in laws.
Localization policy stated. Localization required.
DRCDRC Only permits senior executives & specialists for one year.
Excludes almost all top executive level jobs.
LesothoLesotho 4 expatriate senior executives and specialists – given automatic entry.
Requires work permits for all.
MalawiMalawi Only permits management and expert jobs. Permit key positions in investments.
MauritiusMauritius Highly qualified persons. No such restriction in law.
Preliminary RecommendationsPreliminary Recommendations
1.1. Agree on Common Liberalization TargetsAgree on Common Liberalization Targets- Are we going to use the standard mode 4 categorization?
2.2. Negotiate clearly defined time lines for stay of persons Negotiate clearly defined time lines for stay of persons - Permits in most States do not have clear time frames- Creates considerable uncertainty.
3. 3. Remove Limitations in GATS that do not exist in applied regimes.Remove Limitations in GATS that do not exist in applied regimes.- Some limitations in GATS are not in applied regime.- So seemingly not required hence should be removed.
Preliminary RecommendationsPreliminary Recommendations
4. 4. Consider Relaxation of High Skill Requirements.Consider Relaxation of High Skill Requirements.- Most movement is limited to high skill, not semi & low skilled.- Most movement is limited to high skill, not semi & low skilled.- Use negotiations to reflect on what extent this is desirable.- Use negotiations to reflect on what extent this is desirable.
5. Increase Exceptions to Labour Market Tests.5. Increase Exceptions to Labour Market Tests. - Authorities have wide discretion on this.- Authorities have wide discretion on this. - SADC offers platform on how a balance can be obtained.- SADC offers platform on how a balance can be obtained.
Thank You….
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