Immigration Amendment Bill [B32-2010]: briefing; Refugees Amendment Bill: deliberations & voting; South African Citizenship Amendment Bill & Births and Deaths Registration Amendment Bill: NCOP amendments

Home Affairs

15 November 2010
Chairperson: Ms M Maunye (ANC)
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Meeting Summary

The Committee approved the National Council of Provinces’ amendment to both the South African Citizenship Amendment Bill [B17B-2010] and the Births and Deaths Registration Bill [B18B-2010].  and the Refugees Amendment Bill [B30-2010]. The Committee received a briefing from the Department of Home Affairs on the Immigration Amendment Bill [B32-2010].

The Committee heard a Democratic Alliance submission on proposed amendments to the Refugees Amendment Bill. Concerns included the definition of ‘dependant’ which provided a closed list of possibilities; political office bearers being allowed to hold positions on the Refugees Appeal Authority; the 30 day provision for asylum seekers to register their children; asylum seekers not being able to apply for permanent residence until after receiving refugee status; non-political crimes committed outside the country being a precursor for denial of an asylum application; right of appeal not allowed for an applicant whose application had been deemed ‘manifestly unfounded’. Both the majority of the Committee, the Department and the law advisors did not choose to accept any of DA’s proposals. The Committee voted on and approved the Bill.

The briefing on the Immigration Amendment Bill explained that the Bill proposed to explicitly outline the differences between a permit and a visa. It would create more specific visas and permits and delete others. The Bill would grant the Minister the powers to designate where a port of entry could be and to withdraw such status. The Bill would make it mandatory for all children entering the country to be in possession of a passport regardless of age. The Bill ultimately sought to give the Department more powers to regulate movement in and out of the country.

Members commented that in the progression of the Immigration Amendment Bill through the parliamentary process, the Department should canvass as much public opinion as it could as the Bill would have far reaching implications not just for Home Affairs but for other departments such as Trade and Industry and the Department should be cognisant of that fact. Clarity was sought on all children needing passports to enter the country. Some members commented on the necessity of the legislation.

Meeting report

South African Citizenship Amendment Bill [B17C-2010]: voting
Mr Gideon Hoon, State Law Adviser, read out the amendment which would be made to the South African Citizenship Amendment Bill [B17B-2010]. The amendment had been tabled by the Select Committee on Social Services and explained to the Home Affairs Portfolio Committee at the 12 November meeting.

The Department would amend Clause 6 to delete paragraph (a) and to add the following subsection (3): Any person who obtained South African citizenship by naturalization in terms of this Act, shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic does not support.

Ms A Lovemore (DA) voiced her displeasure at the proposed amendment and registered the Democratic Alliance’s rejection of the amendment. The Democratic Alliance would make a declaration on the amendment during the National Assembly plenary voting on the Bill scheduled for 18 November 2010.

The Committee approved the proposed NCOP amendment.

Births and Deaths Registration Bill [B18C-2010]
The Department noted the NCOP amendment to omit the phrase ‘‘ facial patterns’’ from the Clause 1 definition of ‘biometrics’. This would align the Bill with the Refugees Amendment Bill [B30-2010].

The Committee approved the proposed NCOP amendment.

Refugees Amendment Bill: Democratic Alliance submission
Ms Lovemore presented the Democratic Alliance submission on aspects of the Refugees Amendment Bill about which the Democratic Alliance was unhappy:

▪ The definition of ‘dependant’ in the Bill provided for a closed list of possibilities. Allowance had to be made for some discretion to be exercised in unusual circumstances.

▪ On non-political crimes committed outside South Africa by asylum seekers, the submission highlighted the importance of the Department remaining cognisant of the international conventions to which South Africa was a signatory. These included the United Nations Convention and Protocol Relating to the Status of Refugees of 1951 and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969. In taking these conventions into consideration, the Department would ensure that it was fair in its denial or granting of status to applicants.

▪ On political office bearers being allowed to serve on the Refugee Appeals Authority, concern was raised about the correctness of allowing office bearers to hold positions on the Authority. Every political office bearer would have a political agenda. There was no cogent reason for the inclusion of a political office bearer if a comprehensive migration policy was in place, and if the Appeals Authority was sufficiently capacitated to deal with appeals within the ambit of local and international legislation, conventions and protocols.

▪ On asylum seekers being granted 30 days to report the birth of a child, additional time must be allowed given the possible dire consequences of non-compliance with the tight timeframe of one month.

On the Director General not handling ‘manifestly unfounded’ asylum applications, the assumption that a reception centre had correctly determined an application to be manifestly unfounded was based on the assumption of there being competent officials, accurate country information and an accurate submission by the applicant. None of these were currently in place. This reality must be recognised, and a right of appeal must be allowed for an applicant whose application had been deemed ‘manifestly unfounded’.

▪ On persons waiting for a permit for a prolonged period of time, if the objectives of the Bill were achieved, the documentation of refugees should take far less than the current five to seven years to process. However, to require a person to spend another five years in the country in order to gain permanent residence, with the uncertainty of deportation constantly a threat, was unacceptable. This was not in line with international practice, despite the Department’s protestations to the contrary. The same requirement did not apply to economic migrants, and policies and legislation should be fair to all.

▪ On the proposed scrapping of the Standing Committee for Refugee Affairs, serious consideration must be given to developing and equipping a similar, but efficient, independent oversight body.

The Chairperson commented to Ms Lovemore that legislation could not encapsulate every aspect and detail that the Member wanted. The matters she had raised had been deliberated on for quite some time and the Department had responded to them.

Mr J Thibede (ANC) said that given that the matters raised in the submission had been discussed for quite some time, he agreed with the Chairperson’s conclusion that not every suggestion made by Members could be incorporated into the legislation. The Committee should now move to vote on the Bill.

Department of Home Affairs (DHA) response to Democratic Alliance submission
Mr Tsietsi Sebelemetja, Director of Drafting: Department of Home Affairs, responded to the points raised in the submission. On the definition of ‘dependant’ and the removal of the word “includes” from a provision in the Bill dealing with dependants of potential applicants, the DHA would have the means to establish how many dependants an applicant had whether they were travelling with the applicant or not and would note that on the application form. On non-political crime committed outside South Africa by an applicant, the Department would place emphasis on the words “serious non-political crime” in assessing whether the applicant could be granted status or not. On political office bearers, the DHA had qualified this concept by stating that the political office bearers allowed to serve on the Refugees Appeal Authority could not be members of the national executive structures of their political party. On registration of births by asylum seekers, the provision allowing for 30 days for registration could not be altered as this was the same condition given to South African citizens and there could not be a disparity between the time period for citizens and asylum seekers. On ‘manifestly unfounded’ applications, an applicant was properly vetted with reasons provided by the officer in charge of the vetting prior to that applicant’s application being deemed manifestly unfounded. On granting a person permanent residence based on the fact that they had waited five or more years for status, the Department maintained its position that an asylum seeker needed to undergo all due processes before being allowed to apply for permanent residence. The Department felt that the scrapping of the Standing Committee for Refugee Affairs had adequately dealt with previously and would not be rehashed.

Ms Bongiwe Lufundo, Principal State Law Adviser, noted that the major concern about Clause 2 dealing with non-political serious crimes, appeared to be around the wording of what constituted a serious crime and that had been dealt with. The Bill was cognisant of international conventions in dealing with what a serious non-political crime was and what should be done before denying or granting status to an asylum seeker.

Ms Lovemore said that she was disappointed with the Department’s response to the submission which had been made in the interest of human rights protection. She was not convinced that that same interest had been in the Department’s thinking in the response.

Adv Frank Jenkins, Parliamentary Legal Adviser, commented on the DA’s desire for an automatic review of asylum applications marked as ‘manifestly unfounded’. These cases had the potential to go to a judicial review and that could take time and cost a lot of money for the Department. There was a need to ensure that the legislation was not creating more problems and would be helpful rather than detrimental to the Department achieving its goals.

Mr Thibede said that the Committee had to accept that there was some agreement on some issues and disagreement on others. The Committee had the responsibility to enact the legislation and work to fix areas of imperfection once it was in practice.

Ms Z Balindlela (COPE) commented that she appreciated Ms Lovemore trying to keep human rights in primary focus in her submission. However, it was important for the Committee to move forward with the legislation.

Voting on Refugees Amendment Bill
The Committee approved Clauses 1, 2, 3, 5, 6, 8 of the Bill with amendments. Clauses 7, 9, 10, 11, 12, 13 were also approved. The Democratic Alliance voted against some of the clauses.

Immigration Amendment Bill briefing
Mr Mkuseli Apleni, Director General: DHA, said the Department felt it necessary to amend the Immigration Act due to the difficulties it had experienced in implementing aspects of the Act. There was
poor management of risks associated with the adequate screening of foreign nationals who sought to enter South Africa. There were inadequate integrated security verification processes and a lack of interaction with clients in order to verify their intentions for entering the country.

The Bill would seek to:
delete certain wording in the Preamble to the Act,
substitute, insert or delete certain definitions,
provide for the designation of ports of entry,
revise the provisions relating to the Immigration Advisory Board,
revise provisions relating to the making of regulations,
revise provisions relating to visas for temporary sojourn in the Republic and related procedures,
provide for the mandatory transmission and use of information on advance passenger processing,
provide for the transmission of passenger name record information,
revise provisions relating to permanent residence, to revise penal provisions,
repeal provisions relating to immigration practitioners.

Current provisions under the Act made it possible for people who entered the country for purposes of visiting to apply for a permit allowing them to stay in the country for a longer period.
The Bill would seek to explicitly outline the difference between a permit and a visa and provide stringent guidelines on how to determine for which of the two a person qualified.

The Department proposed a set of visas and permits in order to best control the influx of people into the country and to best outline the reasons for their visit and the extent to which they could stay in the country. Category A visits (not exceeding three months, however extendable by further period of three months) contained visas granted for:
Holiday visit;
Medical treatment;
Business visit;
Attending conferences;
Study purposes.

Category B visits (for any period which may not exceed three years) contained visas granted for:
Academic sabbatical;
Voluntary or charitable activities;

The Department proposed various permits to assist with regulation of the influx of people, these included:
Relative’s permit;
General work permit;
Critical skills work permit;
Intra-company transfer work permit;
Corporate permit;
Asylum transit permit.

The following permits were proposed to be deleted from the Act by the Bill:
Quota work permit;
Exceptional skills work permit;
Cross border and transit permits.

Clause 1 would amend paragraph (c) of the Preamble to the Act in order to substitute “functions of immigration control” for “management of immigration”. This was to ensure that the correct terminology was used as the context was about “management” of immigration rather than the “control” of it.

Clause 2 of the Act would be amended to include
a new definitionadvanced passenger processing’. This related to the mandatory compliance for electronic submission of passenger information before boarding passengers through the APP system. The clause would also include the new definition ‘passenger name record’ relating to the mandatory submission of passenger name record information. There was currently no provision in the Act covering that aspect.

Section 7 of the Act would be amended in order to effect consequential amendments about the change of categorisation of certain permits to visas, as well as to make provision for the charging of fees for advanced passenger processing and passenger name record (information) transmission.

Clause 6 of the Bill would amend Section 9(3)(a) of the Act in order to make it a requirement that a child must possess his or her own passport. This would alter the previous wording which made it mandatory only for a child over 16 years to have a passport; instead children of all ages would be required to have a passport. Clause 6 of the Bill would insert section 9A into the Act in order to empower the Minister of Home Affairs to designate (in the prescribed manner) any place which complies with prescribed requirements, as a place of entry or exit. The Minister was also empowered to withdraw any such designation. The Bill contained other clauses which would amend the Act to make it easier for the Department to regulate movement in and out of the country.

Ms Lovemore commented that the proposed legislation seemed to be far reaching and broad and would have serious implications. She asked why such a Bill was necessary when there seemed to be an unclear general migration policy from the Department.

Mr Apleni responded that the legislation was necessary because the current Immigration Act was not sufficient in assisting the Department with monitoring those people who entered the country with a stated intention but with another one in mind.

Mr M Oriani-Ambrosini (IFP) commented that in the progression of the Bill through the parliamentary process, the Department should canvass as much public opinion as it could so as to get a view of the public’s perception of the Bill. The Bill would have far reaching implications not just for Home Affairs but for other Departments such as Trade and Industry and the Department should be cognisant of that fact. He lamented that the Bill was a throwback to “the days of John Vorster”.

Mr Apleni said that the Department would canvass widely on the Bill in the coming year and would take on public comment before proceeding with the legislation. He disagreed with the John Vorster analogy used by Mr Oriani-Ambrosini.

Mr Thibede voiced his appreciation for the Department’s proposed amendments. The Bill was very important and should be given primary attention. There had to be thorough checks on people coming into the country and the Bill would assist in allowing that. He sought clarity on travelling children needing to have a passport before entering the country.

Mr Apleni responded that all children entering the country should have a passport regardless of age, this would be done to assist in preventing human trafficking.

The Chairperson wished everyone a Merry Christmas and a Happy New Year.

The meeting was adjourned.

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