Immigration Amendment Bill [B32-2010]: public hearings (day 1)

Home Affairs

24 January 2011
Chairperson: Ms M Maunye (ANC)
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Meeting Summary

The Committee welcomed public submissions on the proposed Immigration Amendment Bill [B32-2010]. Submissions were received from the Peninsula Immigration, Consortium for Refugees and Migrants in South Africa and the People against Suffering, Suppression, Oppression and Poverty.

Peninsula Immigration gave a submission which focused primarily on tightening the proposed Bill to limit immigration and put in lace stringent rules for foreign nationals. Immigration policy should be created with South African interests being the primary consideration. The organisation proposed that citizenship not be granted to foreign nationals as it was a ‘birth right’. A ten year period of residency in the country should be fulfilled by any foreign national seeking a permanent residence permit in the country. The organisation was against the repeal of Section 46 of the Immigration Act which made it mandatory for immigration practitioners to be the main people who assisted immigrants in attaining permits from the Department of Home Affairs. Instead the organisation argued for a stricter implementation of the provision. 

The Consortium for Refugees and Migrants in South Africa presented a submission which highlighted the need for more comprehensive immigration policy. The Consortium recommended that any future migration policy should focus on the efficient import of skills, rights-based management of asylum seekers and refugees, management of economic immigration that promotes national and regional development; management of a variety of risks associated with different policy options; and ensuring effective and distinct macro- and micro-level refugee and migration management. The organisation took issue with Clause 5 of the Bill which required all minors entering the country to have a passport, this was problematic for unaccompanied minors who did not have the means to attain a passport and did not have adult supervision.

The submission from the People against Suffering, Suppression, Oppression and Poverty advocated for the protection of refugees and asylum seekers. The organisation opposed a provision in the Bill which contained increases in punishment for various offences relating to immigration. The organisation felt that the Department of Home Affairs had too many inefficiencies and incapacity to handle the task that would be imposed by the Clause if the Bill became law. The organisation opposed the proposed procedure of “assessing if a person qualified for asylum” at the border as proposed by the Bill. The organisation took issue with the provision relating to the reduction of the validity time of the transit asylum permits under the proposed Amendment Bill.

Members commented on the need to have skilled people in key industries contributing to the economy regardless of their origin. They contributed on the need to do away with unnecessary stereotypes and categorizing which led to negative behaviour towards foreign nationals. They emphasised the need for foreign national participation in the economy to stimulate growth. They supported the submissions call to not repeal Section 46 of the principal act which would do away with immigration practitioners. There was overall consensus on the need for comprehensive immigration policy in the country to address some of the migration problems.

Members sought answers on the best manner to fix the situation where economic migrants entered the country under false pretences. They asked whether the term ‘national interest was satisfactory in the Amendment Bill. They sought clarity on barriers that would affect certain sectors should the Bill come to pass along with clarity on hat issues pervaded on the provision pertaining to minors needing to have passports upon arrival in the country. Members queried the policy issues arising from the proposed repeal of exchange visas/permits. 

Meeting report

Peninsula Immigration Submission
Mr Rafiq Fryddie, Operations Manager, Peninsula Immigration, submitted his organisation’s views on the proposed Bill. The organisation highlighted the need for the Bill to protect South African interests above all else. The provisions made under the Bill needed to be strictly and stringently implemented without exception. 

Peninsula Immigration proposed that any foreigner who wished to get married or enter into a life-partnership with a South African citizen should have to produce proof that they were not married in their country of origin or any country where they were a resident in for more than 6 months. On the issue of Visitor permits, the organisation argued that a foreigner granted such a permit for the purpose of visiting family, holiday, meetings, conference tourism, etc. should not be allowed to apply for any other permit other than an extension.

On the issue of work permits, Mr Fryddie stated that a foreigner who was a work permit holder should only be eligible for permanent residence after being a holder of such a permit for 10 consecutive years regardless of position held. A cap on the amount of work permits issued should also be implemented. On Business permits, the organisation argued that the holder of such a permit should employ within the first two years of issuance of such a permit, at least 10 South African Citizens/Permanent Residence or at least 80% of his/her staff compliment should be South African Citizens/Permanent Residence whichever was the greater subject to the nature and size of the business. The organisation stated that no foreigner should be granted South African Citizenship and that permanent residence should only be granted after ten consecutive years of being on the respective permits.

The organisation sought the amendment of Section 27 subsection (g) of the Immigration Act of 2002 which dealt with the provision relating to the granting of citizenship and/or permanent residence through relations or kinship. It proposed the amendment of Section 26 paragraph (a) of the Immigration Act to make it mandatory for an individual to spend a minimum of 10 years in the country prior to being granted permanent residence. This proposal would see the deletion of Section 26 (a) subsection (d) in the Act which prescribed shorter time period prior to granting of permanent residence. The organisation was against the repeal of Section 46 of the Immigration Act which made it mandatory for immigration practitioners to be the main people who assisted immigrants in attaining permits from the Department of Home Affairs. Instead the organisation argued for a stricter implementation of the provision.

Discussion
Mr M Mnqasela (DA) commented that immigration was a favourite subject of his. He commented on the need to have skilled people in key industries contributing to the economy regardless of their origin. In order for the economy to grow, the country needed input from various people, some of whom may not necessarily originate from South Africa.  A lot of South Africans never had access to basic schooling and there was a skills shortage in certain areas in the country. It was in the best interests of the country to allow foreign nationals studying in the country to continue to do so. Having listened to the presentation by Mr Fryddie, the conclusion that one could draw was that he did not want foreigners to come to South Africa. He supported the submissions call to not repeal Section 46 of the principal act which would do away with immigration practitioners. Immigration policy needed to be improved so that foreign nationals were not seen as ‘aliens’ or referred to as ‘other’ and alienated from the South African community. It was this alienation and stereotyping that had led to the 2008 xenophobic violence; he did not want to believe that Mr Fryddie had come to represent that viewpoint to the Committee.

Ms A Lovemore (DA) commented that she believed in the creation of opportunity for South Africans but also felt that foreign nationals could also contribute to that creation. Mr Fryddie’s presentation had presented a contrary view to that held by her and Mr Mnqasela. She asked why the organisation felt so strongly about its views on issues addressed in the Amendment Bill. She asked why the organisation sought to punish people who overstayed in the country past the period prescribed by the permit.

Mr Fryddie replied that the organisation felt strongly on the issue of a 10 year period being put in place prior to the granting of permanent residence to foreign nationals who marry South African citizens so that fraudulent marriages could be discouraged and limited. People who overstayed intentionally needed to be punished within the ambit of the law because they had no respect for South African laws. The organisation would have suggested a 2 year ban from entering the country to people who overstayed but that would make it easier for those people to return to the country.

Consortium for Refugees and Migrants in South Africa (CORMSA) Submission
Ms Gail Eddy, Senior Researcher, CORMSA, presented the organisation’s submission on the Bill.

CORMSA noted that the Department of Home Affairs had excluded refugees, asylum seekers, and economic migrants, who represented a large number of people migrating to South Africa from its definition of people who the proposed Bill catered to. This reflected South Africa’s immigration policy which was aimed at attracting highly skilled workers but provided few means for low skilled immigrants or those without sufficient resources or passports to legalise their entry and stay in the country. The Bill sought to deal with the symptoms relating to immigration rather than the problems affecting it. The Bill was a reactive response to immigration as opposed to being proactive.

CORMSA recommended that any future migration policy should focus on the efficient import of skills, rights-based management of asylum seekers and refugees, management of economic immigration that promotes national and regional development; management of a variety of risks associated with different policy options; and ensuring effective and distinct macro- and micro-level refugee and migration management.

CORMSA highlighted specific Clauses in the Bill which it had problems with. In Clause 5, the issue of minors needing to have passports and travel documentation was raised. CORMSA argued that the Clause should include clear provisions on how children, particularly unaccompanied minors would be assisted in getting appropriate documentation to ensure their protection. These provisions should also clearly define the roles for each department in dealing with these categories of children. The Bill did not go into enough detail on the issue of unaccompanied minors. Clause 7 (c) of the Bill, made amendments to Section 10(6) in the Immigration Act that foreigners would no longer be allowed to change their status whilst in South Africa, except under exceptional circumstances. CORMSA recommended that clear indications be made in the regulations of the Bill on how this application should be made and the conditions associated with it.

Clause 11 proposed that Section 15 of the Act be amended to specify that the business a foreigner wished to establish must be ‘prescribed to be in the national interest’. The Bill did not provide a definition of ‘national interest’. CORMSA recommended that a definition be inserted in the ‘definitions’ section of the Bill. This would assist in preventing arbitrary decisions being made when applications for a business visa was submitted.  CORMSA welcomed the proposal of a critical skills employment permit, under Clause 12 of the Bill, which would allow foreigners who were highly skilled to gain employment in the country without hassle.

Clause 15 amended the validity period of the asylum transit permit from 14 to 5 days, for reporting to the nearest Refugee Reception Office. It also provided for a procedure for establishing whether or not such a person qualified for making an application for asylum. CORMSA took issue with the proposed reduction in days for reporting as it would become increasingly difficult for asylum seekers to get access to Refugee Reception Offices, and would make them vulnerable to arrest and deportation. Clause 24 contained drastic increases in punishment for various offences relating to immigration. CORMSA felt that the Department of Home Affairs had too many inefficiencies and incapacity to handle the task that would be imposed by the Clause if the Bill became law. The organisation thus recommended that the length of the punishments be reviewed and in some cases be reduced depending on the severity of the offence. 

Discussion
Ms Lovemore thanked CORMSA for its submission and posed several questions. Firstly, she noted that reference had been made in the submission about economic migrants entering the country under false pretences, i.e. through the asylum seeker route. She therefore asked for suggestions on how to address that issue because the Bill did not address it at all. Secondly, she asked whether CORMSA was satisfied with the provisions in the Bill. Thirdly, she asked whether CORMSA was satisfied with the critical skills permit proposal in the Bill. Was the organisation happy that a list of businesses considered to be serving the ‘national interest’ would be compiled under the proposed Bill?  

Ms Eddy replied that in order to deal better with the issue of economic migrants who entered the country under false pretence, a more comprehensive immigration policy was required. It was a policy issue which had yet to be addressed. The organisation was unhappy with the provision which made it impossible for asylum seekers to change their permit status whilst in the country and it hoped that it would be removed from the Bill. Listing critical skills would hopefully assist in allowing foreign nationals with specific qualifications to enter the country without hassle. The term ‘national interest’ was a term which was vague and CORMSA hoped to see that left out of the Bill. 

Adv A Gaum (ANC) commented that once the term ‘national interest’ was introduced it narrowed down the interpretation of what businesses could be placed under that category. He asked CORMSA whether it had an alternative term it would prefer to ‘national interest’.

Ms Eddy reiterated her concern that the term ‘national interest’ was vague and CORMSA hoped to see it left out of the Bill.

The Chairperson asked CORMSA to elaborate on the barriers that would come into being in the health and education sectors should the Bill be passed.

Ms Eddy replied that some of the difficulties that would affect those sectors would be the registration of foreign nationals practicing in those fields; there was no capacity to effectively carry this out.

Mr McGluwa (ID) commented that he had viewed Clause 5 of the Amendment Bill as a regulation. He asked CORMSA to elaborate on the problems unaccompanied minors encountered in attaining a passport.

Ms Eddy replied that often unaccompanied minors arrived in the country after having escaped violence and oppression in their countries of origin thus many of them would not have documentation let alone adult accompaniment. They were vulnerable and they faced difficulty in attaining a passport.   

Mr Mnqasela asked whether CORMSA was advocating for the people whose immigration status in the country was under question to be allowed to study at institutions in the country.

Ms Eddy replied that CORMSA was advocating that people who had been in the country studying but had a permit which was up for renewal but not yet been issued should not be disallowed to study on that basis.

People against Suffering, Suppression, Oppression and Poverty (PASSOP) Submission
Mr Braam Hanekom, Coordinator, PASSOP, submitted his organisation’s views on the proposed Amendment Bill. 

PASSOP took issue with the provision relating to the reduction of the validity time of the transit asylum permits from 14 to 5 days under the proposed Bill. The reduction was unnecessary, unreasonable and simply unacceptable. PASSOP submitted that the validity time be extended from 14 to 28 days.

The organisation opposed the proposed procedure of “assessing if a person qualified for asylum” at the border as this was unlawful. The chaos at border posts such as Beitbridge amply demonstrated that any determination made would be done so under pressure and would not have been the result of good assessment.

PASSOP opposed the proposed deletion of Section 22 (b) of the Immigration Act, which dealt with exchange visas for persons under the age of 25 years of age who had received an offer to conduct work for a period no longer than one year. This deletion was unnecessary and would deny South African youth the cultural experience of engaging and befriending the vast diversity of foreign youth that were attracted under this section. The foreign nationals who took up cultural exchanges were often willing to work in less privileged communities. This posed no threat to the unemployed in South Africa, as the numbers of people who had taken up this opportunity were few.

The organisation opposed Clause 24 which contained drastic increases in punishment for various offences relating to immigration. PASSOP felt that the Department of Home Affairs had too many inefficiencies and incapacity to handle the task that would be imposed by the Clause if the Bill became law.

The organisation welcomed the proposed repeal of Section 46 in the Immigration Act which related to the removal of immigration practitioners.  PASSOP saw immigration practitioners as unnecessary as they solely serviced high end clientele.

Discussion
Mr McGluwa commented that Clause 5 was about regulations in his view. He asked PASSOP to elaborate further on its concerns about the Clause.

Mr Hanekom replied that PASSOP was opposed to Clause 5 as it did not seem to assist South Africa and seemed to be an unnecessary provision as some minors were unable to attain travel documents and had valid reasons why this was so.

Adv Gaum asked PASSOP about the provision relating to the increase of punitive measures for those who flouted immigration laws. He asked whether part of the provision was not justified. Finally, he asked how the exclusion of immigration practitioners who provided legal advice would be helpful with the proposed increase in punitive measures in mind.

Mr Hanekom replied that if immigration practitioners existed solely to provide legal advice to immigrants and assist with permit applications to those who could not complete such applications by themselves then the organisation would oppose repealing Section 46. Some of the punitive measures were justified but there were cases where the measures were unjustified and harsh.

Ms Lovemore asked about the exchange visa for persons under the age of 25 which would be scrapped under the proposed Bill and whether PASSOP had exact figures of people under those particular figures. She asked why the organisation was in favour of scrapping immigration practitioners especially since this would likely open the door for fraudulent people into the immigration sector. She mentioned the idea raised by the Deputy Minister of Home Affairs on the issue of asylum seekers and the need for them to seek refuge in the first peaceful country they escaped into. She asked for PASSOP’s view on the issue. 

Mr Hanekom said that if immigration practitioners existed solely to provide legal advice to immigrants and assist with permit applications to those who could not complete such applications by themselves, then the organisation would oppose repealing Section 46 of the Immigration Act. In some cases immigration practitioners seemed to be used to gain access to the Department of Home Affairs by unscrupulous people with money and that was why the organisation had welcomed the repeal of Section 46, as a means to prevent the corruption of a few who subverted the rights of the many. The Bill should be specific on who qualified to handle immigration matters as a practitioner if Section 46 was scrapped. PASSOP did not have exact figures on the exchange visas but the permits seemed to be very effective and a lot of exchange programmes engaged in social work thus the visas should not be terminated. Where a person had travelled for many kilometers and entered South Africa as the country they sought refuge in, that person should not be turned back. There needed to be coordination between Home Affairs and International Relations and Cooperation in order to work out better immigration policy so as to determine whether the Deputy Minister’s view was valid.

The meeting was adjourned.

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