Immigration policy concerns of the Law Society of South Africa; Home Affairs Chairperson election

Home Affairs

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

The Committee elected Ms Maggie Maunye as Committee Chairperson.

The Law Society of South Africa had requested a meeting with the Committee due to the following concerns:
▪ Matters needing statutory intervention and not dealt with in the Immigration Amendment Bill;
▪ Matters needing statutory intervention and not dealt with in other Home Affairs Acts;
▪ The need for a Policy Conference, the last having been held in 2000;
▪ The difficulties being experienced in obtaining permits under the Immigration Act, highlighting the kinds of issues that need to be factored into Immigration Legislation and Policy;
▪ Various Refugees Act  related matters, including travel documents, identity cards, extended validity of documents and situations surrounding the illegal seizure of expired documents;
▪ The need to develop a partnership with the Portfolio Committee for the greater good of the clients of the Department in respect of service.

LSSA spoke of the need for more flexibility in the controls on granting of permanent residence permits, especially to foreign nationals who had been staying in the country for a period that was longer than the prescribed time set for granting permanent residence status. The policy should also recognise people with skills that were needed in the country and make allowance for such people being granted special permits. A policy conference was important as it provided a means of avoiding contentious issues being included in immigration policy prior to its tabling in Parliament.

LSSA said problems persisted in the issuance of permits, incapacity to handle asylum seekers and refugees, inadequate training of officials at the Home Affairs Department, and the lack of coherent immigration policy. These factors contributed to the poor state of immigration affairs. LSSA proposed that a Standard Operating Procedures (SOP) manual be re-instituted to assist with the handling of immigration affairs. Training courses for immigration staff could further assist with immigration, along with the streamlining of the issuance of permits with clear guidelines determining which permits could be issued to refugees and asylum seekers.

Members expressed their strong feelings over the need for a coherent immigration policy in the Republic. They commented that it was difficult to achieve much in immigration without the active participation of the Minister or Deputy Minister of Home Affairs. Members sought clarification on the role of the Immigration Advisory Board and commented that an immigration policy conference should be initiated by the Department of Home Affairs as the Committee could not do this. Other Members commented that South Africa needed to come up with an immigration policy which was well balanced and fair but also protected the interests of the Republic, noting that it would be wrong for South Africa to grant entry to all asylum seekers when it could not yet adequately take care of its own citizens. They commented that a policy conference on immigration policy was necessary and that the current immigration policy was problematic. They called for something to be done to locate the commissioned SA Law Reform Commission report on immigration submitted to the Minister of Justice and Constitutional Development in 2003 – as nothing had come of it.

Meeting report

Ms Maggie Maunye was elected to the position of Chairperson prior to the beginning of the meeting.

Law Society of South Africa Submission
Mr Peter Horn, Co-Chairperson of the Law Society of South Africa, made introductory remarks in which he voiced his appreciation for the Committee’s invitation. LSSA was an umbrella body for all attorneys and candidate attorneys in South Africa.

Mr Julian Pokroy, Chairperson of LSSA Immigration and Refugee Law Committee, congratulated the Chairperson of the Committee on her election. He stated that LSSA had an important role to play in the formulation of immigration policy as they had firsthand experience of such matters. LSSA’s Immigration and Refugee Law Committee did not solely deal with foreign nationals but also assisted South Africans with issues such as dual citizenship.

Mr William Kerfoot, Cape Law Society representative and Committee member of LSSA Immigration and Refugee Law Committee, congratulated the Chairperson on her election. He highlighted that LSSA had played an integral role in the run-up to the passing of the Immigration Act 13 of 2002, which came into operation on 7 April 2003. It had played a key role in the moulding of the Bill and this had been demonstrated in the selection of several lawyers to the Immigration Advisory Board which had been created when the Act came into operation. The organised legal profession had played both a constructive and substantive role in the development of the country’s recent immigration law, both in a statutory and common law sense.

In addition, the organised legal profession had forged relationships with its counterparts in the United Kingdom through representatives on the Immigration, Nationality & Refugee Law Committee of that body, as well as links with the Australasian Immigration Lawyers Association, which was currently, for the first time in its history, headed by an ex-South African. For the first time in the history of the International Bar Association (IBA), a South African attorney was chairing its Immigration, Nationality & Refugee Law Committee.

The Immigration Advisory Board had however not met regularly since the implementation of the Immigration Act of 2002. Mr Kerfoot spoke of the need for there to be more flexibility in the controls on granting of permanent residence permits, especially to foreign nationals who had been in the country for a period that was longer than the prescribed time set for granting of permanent residence status. Stakeholders in the immigration sector had had a fruitful meeting with the former Deputy Minister of Home Affairs, Mr Malusi Gigaba, at which he had made positive suggestions on issues affecting refugees and asylum seekers and LSSA hoped that those suggestions would be taken up by the Department of Home Affairs. Mr Kerfoot stressed the need for clarifying rules on the issuing of permits and the time period that an asylum seeker could be granted under a specific permit.

Mr Pokroy mentioned that the Minister of Justice and Constitutional Development had commissioned a SA Law Reform Commission report a few years ago which made it necessary for all rules and regulations made by the Department of Home Affairs to be reviewed by the Department of Justice and Constitutional Development prior to their institution. The report had been submitted to the Ministry of Justice and Constitutional Development but nothing had been done about it since. He highlighted the importance of holding a policy conference prior to the creation of major immigration policy in order to sort out potential areas of contention prior to major legislation being tabled before Parliament. Such a conference had been held in 2000 and had largely been successful.

Mr Solly Lockhart, representative of the KwaZulu Natal Law Society and committee member of LSSA’s Immigration and Refugee Law Committee, submitted to the Committee a range of issues affecting immigration practitioners. There had been improvements in aspects of the work done by the Department of Home Affairs but there was pervading concern in the area of immigration. Problems persisted in the issuance of permits, incapacity to handle asylum seekers and refugees, poor or inadequate training of officials at the Department, and the lack of coherent immigration policy. These factors contributed to the poor state of immigration affairs.

LSSA proposed that a Standard Operating Procedures (SOP) manual be re-instituted to assist with the handling of immigration affairs. Training courses for the immigration staff could further assist with immigration along with the streamlining of the issuance of permits with clear guidelines determining which permits could be issued to refugees and asylum seekers. Permits and applications were being processed at far too slow a pace and there were discrepancies in the time it took for an application to be approved. It was Mr Lockhart’s belief that the Department of Home Affairs was misleading the Committee on aspects of its immigration work.

Discussion
Mr M Mnqasela (DA) thanked LSSA for its submission and praised the Association for emphatically and consistently raising immigration matters. None of the issues raised seemed to be new to the Committee. He commented that he had persistently raised the specific issue of decentralising the issuance of temporary residence permits, to no avail. The Department of Home Affairs needed clear and coherent immigration policy to avoid problems around immigration.

Ms A Lovemore (DA) thanked LSSA for its submission and commented that the Association had very valuable input to give to the Committee on immigration. She commented that it was difficult to achieve a lot in immigration without the participation of the Minister or Deputy Minister of the Department of Home Affairs. The Minister had not responded to the written questions sent by her in the previous year. She asked whether the Immigration Advisory Board’s advice was necessarily heeded by the Minister of Home Affairs. Were the suggestions made by former Deputy Minister Gigaba binding and could the Department be held to account for those suggestions? She asked when the SA Law Reform Commission’s report had been submitted to the Minister of Justice and Constitutional Development. The Committee could not initiate a policy conference and any such conference would have to be initiated by the Department. She commented that there were a large number of immigration queries raised by people annually and the only way she could get response from the Department to her queries was through the use of her title as an Member of Parliament and that was wrong. Members of the public should be given the same treatment when raising queries with the Department.

Mr Kerfoot responded that he believed that the suggestions made by former Deputy Minister Gigaba were indeed binding and would be followed up by the Department. Mr Pokroy replied that the Immigration Advisory Board was a statutory body and as such the Minister had no alternative but to take advice from the body on immigration matters. The SA Law Reform Commission report had been submitted to the Minister of Justice and Constitutional Development in 2003. He commented that a policy conference was important as it provided a means to avoid contentious issues being included in immigration policy prior to its tabling in Parliament.

Mr J Thibedi (ANC) thanked LSSA for its presentation. He asked what an ideal situation on immigration would be. The country needed to come up with immigration policy which was well balanced and fair but also protected the interests of the Republic. It would be wrong for South Africa to grant entry to all asylum seekers when it could not yet adequately take care of its own citizens. It was important to recognise achievements and improvements in the Department regardless of importance.

Mr Kerfoot responded that it was obvious that the country’s immigration policy needed to be clarified and that it needed improvement. He commented that no legislation was perfect but the immigration policy should be more flexible and cognisant of exigent circumstances affecting refugees and asylum seekers.

Mr Pokroy added that the policy should recognise people with skills that were needed in the country and make allowance for such people being granted special permits.

Mr Melder commented that a policy conference on immigration policy was necessary and that the current immigration policy was problematic.

Ms Z Balindlela (COPE) said that the Committee should follow up on the SA Law Reform Commission report and trace its whereabouts. She proposed that the Committee meet with a special United Nations (UN) representative scheduled to visit South Africa on 29 January.

The Chairperson agreed with Ms Balindlela on the SA Law Reform report and commented that the Committee should invite the Minister of Home Affairs to a meeting with the Committee. She proposed that the meeting with the UN representative be scheduled on 31 January.

Members agreed with the Chairperson’s recommendation on the meeting with the UN representative.

Mr Pokroy thanked the Committee for the opportunity to present and hoped that there would be further interaction between the two bodies.

The meeting was adjourned.

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