Education South Africa takes government to court over visa rules

Short on time? Here are the highlights:

• South Africa’s ELT association has taken the government to court to have 2014 amendments to the country’s immigration legislation set aside or modified
• The 2014 rule changes effectively exclude language schools from the South African student visa process
• ELT enrolment in South Africa has fallen off sharply in the years since, with student numbers falling 37% between 2014 and 2015, and student weeks down by 22%
• The country’s ELT sector now hopes for an interim ruling from the court in October and a resolution of the case by end of year

Education South Africa (EduSA), the country’s peak body for English Language Teaching (ELT) schools has filed suit against the South African government in an effort to have May 2014 amendments to the Immigration Act set aside or modified.

The extraordinary move follows nearly two years of discussion and negotiation with government departments, at the end of which the association felt it had no other option but to pursue a legal remedy. “EduSA has made repeated, concerted efforts to resolve these difficulties in dialogue with the [Department of Home Affairs (DHA) and Department of Higher Education and Training (DHET)],” says EduSA Chair Johannes Kraus. “These efforts have failed. Despite repeated promises of assistance and/or interim solutions from the DHA, no solutions or answers have been provided.”

Under the 2014 amendment, student visas can only be issued to “learning institutions”, which include universities, further education colleges, and primary and secondary schools. Language schools, however, are excluded under the 2014 amendment, and the end result is that students or applicants intending to pursue English studies in South Africa have been unable to qualify for a study permit since.

“Currently, the regulations make provisions for visas for ‘learning institutions’, but they do not make allowance for EduSA institutions to be considered as such,” says Mr Kraus. “The case hopes to bring a change to the regulations that would see EduSA institutions legally declared as ‘learning institutions’ and allow our students to enter South Africa and commence their studies. We hope to urgently resolve this matter and allow our members, their staff and the international students to return to normal operations. The social and economic implications of any further delay in the process are too awful to consider.”

Indeed, the effects on EduSA’s 24-school membership have already been profound. The latest enrolment data shows that student numbers declined by 37% from 2014 to 2015, and student weeks by 22%. In absolute terms, student enrolment fell from a high of 10,062 in 2014 to 7,336 in 2015. Student weeks dropped from 55,394 to 45,342 over the same period.

The decline is directly attributable to the 2014 visa policy, and follows several years of steady growth for South Africa’s ELT industry, including year-over-year increases in student numbers of 4% from 2012 to 2013 and 9% from 2013 to 2014.

Affidavits filed by the association set out that the country’s ELT industry accounts for hundreds of millions of Rands in foreign investment, and is “wholly dependent upon the ability of potential foreign students to obtain the necessary visas to come to South Africa.” The documents characterise the 2014 amendments as “unreasonable, unlawful, and unconstitutional” and argue that “modern governments must regulate immigration…in a lawful, reasonable, fair, and efficient fashion.”

The affidavit notes as well that, like all other businesses, English language schools “survive on a profit margin. This margin is certainly not more than approximately 10%, in a good year. So when the industry as a whole declines by over 20%, that profit disappears. It drives language schools into operating at a loss. This is not sustainable…Furthermore, the decline is only going to continue as long as there remains no appropriate visa for EduSA students.”

The court documents make the further point that, rather than a decline from 2013 levels, ELT providers in South Africa could have reasonably expected continued growth in 2014 and 2015 given growing global demand and the average growth performance of other major ELT destinations. The association calculates the economic cost of this foregone growth, as well as the actual losses registered in 2014 and 2015, at R117 million Rand (US$8.2 million). This estimate accounts for direct tuition spending along with travel and housing expenditures.

EduSA also clearly anticipates that schools will be increasingly challenged to sustain their operations the longer they are excluded from the student visa process. EduSA Vice-Chair Torrique Borges reports that two schools – Inlingua Cape Town and English Language School (ELS) – have already been forced to close this year. Most others, he adds, “have had to reduce both their teaching as well as administrative staff numbers due to declining student enrolments because of the prevailing visa situation. Besides this, there are a number of schools who have moved to smaller premises to keep their schools more financially viable due to the current circumstances. More schools are definitely at risk of closing should the current immigration legislation remain in place.”

EduSA now hopes to secure a court date in October, “whereby the judge would then need to make a decision on interim relief for our cause,” says Mr Borges. “If everything works in our favour, we are hoping for a resolution before the end of the year.”

For additional background on trends and immigration policy in the South African market, please see “South Africa’s language schools face declining enrolment due to immigration policy”  and “South Africa’s language schools gaining students but struggling to clarify immigration policy.”