LEGAL REGIMES GOVERNING MODE 4 IN SADC MEMBER STATES Esther Katende – Magezi

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) 2

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 Presentation Lay Out of Presentation 1.Introduction Why the Mode 4 Study? 2.Preliminary Findings 3.Emerging Recommendations

Some States Specify Categories of Skills Needed in the Law State Categories Permitted in State Laws DRCExcludes almost all top executive jobs. South AfricaExceptional skills permits for pre-determined select skills. MalawiPermits key positions in investment. SwazilandOnly 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. ZimbabweProfessionals 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 State Types of Quotas in State Laws Types of Quotas in State Laws AngolaIn enterprise of more than 5 employees, 70% should be nationals unless there are no local employees for position. MozambiqueLarge 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 in: No Quotas noted in: Botswana, Malawi, Mauritius, Namibia, Seychelles & Zambia.

Periods of Stay Vary From 7 Days to 10 Yrs State Short Business Visit Standard Work Visa Longer Work Visa Angola7 days & 30 days12 monthsDepends on investment BotswanaLeft to DiscretionDepends on BoardLeft to Discretion DRC1 year1 – 2 yearsLeft to Discretion LesothoDepends on Visit2 yrsLeft to Discretion Malawi30 days6 mths – 2 yrs5 yrs Mauritius9 months3 yrs / per contractDepends on permit Mozambique30 days90 days – 5 yrsLonger than 5 yrs

Applied Regime – Standard Periods of Stay in the Law State Short Business Visit Work Visa Longer Work Visa Namibia90 days max pa.Depends on permitLeft to discretion SeychellesPractice - 12 mthsLeft to discretion South AfricaLeft to Discretion1 yr, 2 yrs, 3 yrs, 5 yrsBased on Application SwazilandLeft to DiscretionDepends on Immigration. Max 5 yrs TanzaniaLeft to Discretion 3 yrs5yrs – 10 yrs Zambia30 days – 6 mths in any 12 mths. 2 – 5 yrs10 yrs and more. Zimbabwe6 wks max3 yrs5 yrs 8

Labour Market Tests Exist in all States Save Mauritius State Labour 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. MalawiPosition must be advertised and localisation policy existing. There must be a Malawian understudy. MauritiusNone noted.

10 Applied Regime: Labour Market Tests State Labour Market Test in State Laws NamibiaPosition should not be one in which several persons are already engaged in Namibia to meet the requirements of the locals. SeychellesConsider 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 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? -Facilitates transparency in negotiations. -Easier for interpretation of commitments.

Mode 4 Categories Mode 4 Categories 1. 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.. Intra Corporate Transferees 2. 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 Categories M 4 Categories 3. 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 Professionals – Self employed persons. – In host country to supply a service to local client. – Pursuant to service contract.

14 Permits in Applied Regime as They Relate to Mode 4 Categories StateBusiness VisitorIndependent Professionals Contractual Service Providers Intra Corporate Transferees AngolaShort Term & Ordinary Visa Work Visa Type BWork Visa BotswanaWork Permit DRCWork Permit LesothoWork Permit MalawiVisitors Permit Temporary Employment P Business Residence P MauritiusShort Term Occupation P Business Visitor Permit Occupation Permit Work Permit MozambiqueBusiness VisaWork/ Resident Visa NamibiaBusiness VisaEmployment Permit SeychellesGainful Occupation Permit Gainful Occupation P South AfricaBusiness PermitsWork Permit Intra Company W.P SwazilandClass E, DClass H, F, D, GClass A,,B, D, F, GAll Classes TanzaniaClass A,Class A, CClass B, C ZambiaBusiness PermitEmployment P Investment Permit ZimbabweBusiness VisaTemporary EmploymentTemporary Emp PInvestor Residence P

GATS 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 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.

17 GATS Compared to Applied Regime StateGATS Applied Regime MozambiqueNo 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 Excludes economic needs test.Labour market test used. SwazilandSpecialists, 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. ZambiaManagement and expert jobs for foreign investment. No such requirement. Must train locals.Must train locals too. ZimbabweIntra 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 Regime StateGATS ExistingLaws Existing Laws AngolaBanking – 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. Botswana- Restricts skills to managers, executives, specialists, highly qualified professionals. No restriction to managers, executive & specialists in laws. Localization policy stated.Localization required. DRCOnly permits senior executives & specialists for one year. Excludes almost all top executive level jobs. Lesotho4 expatriate senior executives and specialists – given automatic entry. Requires work permits for all. MalawiOnly permits management and expert jobs.Permit key positions in investments. MauritiusHighly qualified persons.No such restriction in law.

Preliminary Recommendations 1.Agree on Common Liberalization Targets -Are we going to use the standard mode 4 categorization? 2. Negotiate clearly defined time lines for stay of persons -Permits in most States do not have clear time frames -Creates considerable uncertainty. 3. 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 Recommendations Preliminary Recommendations 4. Consider Relaxation of High Skill Requirements. - Most movement is limited to high skill, not semi & low skilled. - Use negotiations to reflect on what extent this is desirable. 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…. 21