Immigration Amendment Bill [B32-2010]: Public Hearings (day 2)

Meeting report

Immigration Amendment Bill [B32-2010]: Public Hearings (day 2)
Law Society of South Africa (LSSA) Submission
Mr Julian Pokroy, Chairperson of LSSA Immigration and Refugee Law Committee, presented the LSSA’s submission to the Committee.

Clause 5 of the Bill related to the purview and remit of the Immigration Advisory Board (IAB). The LSSA felt that since the private sector was the principal beneficiary of the temporary and permanent residence permit system, the IAB should formally serve as the forum for cooperation with the private sector in respect of immigration matters.  The creation of a formal channel of communication within the immigration ‘industry’ would help to reduce the strident and in some cases irresponsible attacks on the Department, such as were seen in the media during the permit adjudication debacle in 2010. The LSSA further submitted that in respect of the provision under Clause 5 relating to unaccompanied minors, there should be clear definition of who should conduct the examination of children at a port of entry.  The Immigration Act (2002) (the Act) must recognise the need to have unaccompanied children assisted by someone more responsible other than merely a person of the same sex – as otherwise the interview could be conducted and the child’s status / fate decided in the presence of ill-equipped people.

In relation to Clause 7 of the Bill, the LSSA questioned the difference between a permit and a visa and proposed that a definitive explanation of the difference be explained in the Memorandum to the Bill. Also in relation to Clause 7, the LSSA took issue with the provision that made it necessary for a foreign national to have to apply for a change of status from outside the country. Under this provision, the Minister of the Department would have the power to ‘legislate by regulation’ on which person/persons were eligible to apply for a change of permit whilst still in South Africa. There had been no explanation for the inclusion of the provision. Clause 7 also highlighted the new categories of visas that would be created by the Bill. The LSSA submitted that the alteration in visa types offered no obvious lawful benefit.

Clause 11 proposed that Section 15 of the Immigration Act be amended to specify that the business a foreign national wished to establish must be ‘prescribed to be in the national interest’. The Bill did not provide a definition of ‘national interest’. The LSSA disagreed with the inclusion of the provision, which it regarded as exclusionary, and suggested that it be removed. This clause also had a provision that precluded the family members of a foreign national who was in South Africa under a business visa from seeking employment in the country. The LSSA submitted that the provision should be altered to allow a family member to be granted the same visa under the same time limit/period as the foreign national who had come to the country under a business visa.

Clause 12 of the Bill would terminate the granting of permits to exceptionally skilled persons of foreign nationality and would lampoon them under the ‘critical skills’ permit. The ‘critical skills permit needed to be fully detailed and the provisions relating to it properly fleshed out in order to lay out punitive measures for abusing the permit and who qualified to receive such a permit.

The LSSA expressed concern over Clause 23 of the Bill, which would repeal Section 46 of the Immigration Act, which in turn made it mandatory for immigration practitioners to be the main people to assist immigrants in attaining permits from the Department of Home Affairs. Repeal of the Section would be legally contentious and would open the Department up to legal challenges from immigration practitioners.

LSSA finally expressed concern over Clause 24 of the Bill that would seek to increase punitive measures against people who defaulted on immigration laws. There was no adequate explanation for the increment, and in the absence of comprehensive immigration policy the proposal was unnecessary.

Discussion
Ms A Lovemore (DA) sought comments from the LSSA on the lack of consultation prior to the presentation of the Bill to Parliament. She asked whether the LSSA thought the Bill was necessary. She asked whether the intentions of the legislature were evident in the Bill considering the emphasis on regulations and the Minister’s discretion. She asked if the LSSA supported the Bill.

Mr William Kerfoot, Cape Law Society representative and Committee member of LSSA Immigration and Refugee Law Committee, replied that the LSSA and a number of other civil society organisations thought it necessary to have comprehensive immigration legislation. The provisions in the Bill showed a lack of consultation and if the Bill was necessary then proper consultation would have to be pursued prior to its drafting. He commented that the Bill appeared to be against migration.

Mr Pokroy added that there seemed to have been no consultation prior to the Bill being drafted.

Ms P Maduna-Peterson (ANC) sought clarity on the provision relating to the need for minors entering South Africa to have passports as opposed to endorsements.

Mr Kerfoot replied that the LSSA would do research into the matter and respond to the member’s question in writing. 

The Chairperson commented that there were still stereotypical beliefs in informal sectors of the economy to the effect were that foreign nationals were taking local jobs.

Mr Kerfoot responded that knee-jerk reaction against foreign nationals needed to be addressed, especially in areas where those foreign nationals contributed to the national economy.

Adv A Gaum (ANC) asked whether there had been consultation on Clause 23 of the Bill, which would outlaw immigration practitioners.

Mr Pokroy responded that there had been no consultation on the proposed repeal of Section 46 of the Immigration Act and no consultation on the Bill in its entirety.

Ms Z Balindlela (COPE) commented that she was not legally trained, and thought it prudent to have the Department of Home Affairs’ representatives present respond to the public submissions as they were being made.

The Chairperson advised Ms Balindlela that the Department would have an opportunity to respond to all the public submissions at a future sitting. 

Ms Lovemore asked whether it would not be prudent to alter the Bill to make it mandatory for the Minister of Home Affairs to take advice on immigration affairs from the Immigration Advisory Board (IAB or the Board).

Mr Pokroy responded that it used to be mandatory for the Minister to seek advice on immigration affairs from the IAB, but the Immigration Amendment Act of 2004 curtailed the role and scope of the IAB so that the Minister did not have to take advice from the Board. The limitation of the IAB’s powers was never explained. He added that it was vitally important for the Department to consult on legislation that had far reaching implications.  

Mr J McGluwa (ID) commented that it was important for there to be policy workshops and proper consultation prior to the drafting of wide reaching legislation.

Lawyers for Human Rights (LHR) Submission
Mr Sheldon Magardie, Head of Stellenbosch Office, Lawyers for Human Rights, presented the LHR’s submission to the Committee.

The LHR proposed that Section 23 of the Immigration Act of 2002 remain unchanged and that the validity period for an asylum seeker travelling to the nearest Refugee Reception Office to apply for asylum should remain at 14 days.

The organisation contended that if a mandatory Advanced Passenger Processing (APP) system was to go ahead, as proposed in the Bill, further legislation would have to be enacted to ensure that the system met international standards, and to ensure that there was adequate data protection measures in place. LHR further stated that substantial increase in criminal penalties should be reviewed and considered next to migration policy in the region.

The requirement found in Section 35(3)(a) for domestic airlines to transmit electronic passenger lists should be removed.

Discussion
Ms H Makhuba (IFP) said that after having listened to a few submissions on the proposed Bill, it seemed that many entities had identified the same problems. She commented that in 2007 similar legislation had been shelved due to pervading issues. She asked what the ideal validity period for asylum seeker permits would be.

Mr Magardie replied that the validity period should remain at 14 days, as opposed to the five now proposed in the Bill.

Adv Gaum commented that it seemed to him that the APP system was in line with international practices and South Africa was obligated to follow the system with regard to international law.

Mr Magardie replied that the provision relating to the APP was vague on whether decisions made under that provision could be appealed or questioned.

Mr McGluwa sought clarity on the provision relating to the changing of permit status from inside the country.

Mr Magardie responded that the provision in question made it mandatory for applications for change of permit status to be made from outside the Republic unless the Minister deemed that a person could do so from within the country. This was a responsibility that should rather be delegated to a board. South Africa was a signatory to several international conventions that prevented it from sending foreign nationals back to countries where they faced persecution. Changing permit status should be conducted whilst a foreign national was in the country.

Mr M Mnqasela (DA) commented that Section 22 of the Immigration Act was being abused by asylum seekers, who entered the country but then failed to report to a refugee centre in 14 days, sometimes deliberately. He asked what the best way was to deal with the situation.

Mr Magardie replied that he was not surprised that some people in the Department of Home Affairs believed that asylum seekers would lose documents deliberately. However, in his experience, he had not encountered an asylum seeker who had deliberately thrown out his or her documents. There were procedures under law that existed to deal effectively with those who deliberately lost their documents.

Mr Mnqasela commented that he found it interesting that Mr Magardie had not encountered such people, saying that this did happen. People who lost their documents deliberately did so with a view to cheating the system.

Wits African Centre for Migration and Society (ACMS) Submission
Dr Roni Amit, Senior Researcher, Wits African Centre for Migration and Society, resented the ACMS’s submission.

The ACMS advocated for a regional approach to migration with a focus on the promotion of the movement of goods and people. Immigration policy had to take into cognisance the role of South Africa regionally.

The ACMS took issue with the provision under Clause 7 that stated that a foreign national could only change his or her status in the country ‘under exceptional circumstances’, which could only be deemed by the Minister. Clause 11 of the Bill would limit the issuance of business visas and discourage skilled migrants from entering the country.

The ACMS also took issue with the clause that sought to amend the Immigration Act, to limit the validity period for asylum seekers needing to report to a Refugee Reception Office from 14 days to five days. This provision also included prescreening, which was unlawful and would pose challenges for the Department as well as immigrants.

The ACMS raised the issue of illegal detention and deportation covered in Section 34 of the Act. Although this Section was not going to be amended, it was important to note that illegal detentions and deportations were happening, and more had to be done to address the issue. The ACMS opposed the increase of punitive measures against those who defaulted on immigration laws. 

ACMS also opposed the repeal of Section 46 of the Immigration Act through Clause 23 of the Bill, saying that this would create scope for illegal and fraudulent people to set up operations supposedly on behalf of, but in fact to the detriment of vulnerable immigrants.

Discussion
Ms Lovemore asked whether Dr Amit thought that anything could redeem the Bill. She sought clarity on Section 34 of the Act.

Dr Amit responded that the provisions in the Bill needed to be thought through holistically, and immigration policy needed to be clear and comprehensive. Illegal detentions and deportations happened as a result of officials who abused Section 34 and sometimes people would be detained for indeterminately long periods of time without explanation. This issue needed to be addressed. 

Ms Balindlela asked who were the private contractors in charge of detaining immigrants who had transgressed against immigration laws.

Dr Amit responded that at the Lindlela Centre the contractor was BUSASA, and at the airport the contractors were largely unknown.
 
The Centre for Development and Enterprise (CDE) Submission
Mr Anthony Altbeker, Researcher, Centre for Development and Enterprise, presented the CDE’s submission.  

The organisation submitted that the Bill should be more respectful of the need to attract skilled migrant workers to the country, as opposed to being exclusionary. The Bill would discourage the migration of skilled workers to the country, and in light of South Africa’s need for skilled workers that would not be helpful. The Bill did not seem to be helpful to immigration policy and the organisation did not see the reason for its introduction. 

The organisation submitted that the Bill should not restrict the issuance of business permits to those whose businesses were considered in the national interest, as contemplated by Clause 11 of the Bill. The Minister and the Director General of the Department should not have so much power with regards to the delineation of who could qualify to apply for specific permits within the Republic.

Discussion
The Chairperson asked what the CDE’s view was on the issue of unaccompanied minors and the provision relating to the change of permit status in the country.

Mr Altbeker replied that he had no informed view on unaccompanied minors and permit status changes. There was, however, consensus from civil society organisations on the difficulty of obtaining documents for migrants.

Ms Lovemore congratulated the CDE on its Skills Growth and Borders report, which she commented was an excellent document. She asked how Parliament could determine the direction of the legislation with regard to the powers granted to the Minister and Director General.

Mr Altbeker responded that the preamble of the Bill could be drafted by Parliament. He added that hearings on the Bill prior to drafting would be a good idea to improve understanding of the legislation.

Ms Balindlela commented that the CDE publication was a useful one. She said that it might be prudent to have the CDE come to the Committee and present on poverty and the issues relating to it in future.

University of Cape Town Refugee Rights Project Submission
Ms Tal Schreier, Representative for UCT Refugee Rights Project, presented the Refugee Rights Clinic’s submission to the Committee.

The Law Clinic opposed provisions in Clause 15 of the Bill. The organisation submitted that the reduction of the amount of time for the validity of the asylum transit permit, from 14 days to 5 days, was extreme and unwarranted. It further opposed the vague nature of the provision in the clause that sought to delineate the assessment of people arriving in the country and whether their application for asylum should be valid. South Africa was a signatory to various international conventions that prevented it from sending people back to countries where they faced persecution.

The Law Clinic submitted that the proposed dramatic increases in the penalties for contraventions of the Immigration Act, including those for overstaying, were too exigent, pointing out that some foreign nationals found themselves overstaying due entirely to reasons of poor planning or lack of policy or standard operating procedure on the part of the Department, and without any fault at all on their part.

Deloitte and Touche Submission
Mr Lino De Ponte, Partner, Deloitte and Touche, presented the firm’s submission. The firm generally agreed with the proposed Bill but questioned whether the Department would be able to enforce some of the provisions in the Bill.

The firm was in support of Clause 3, which called for the institution of an Immigration Advisory Board (IAB) that had fewer members than the previous IAB. However, it expressed concern over the powers granted to the Minister to appoint members of that Board. 

The firm opposed the provision in Clause 7 that sought to make it mandatory to apply for a permit change from outside the Republic. It also submitted that clearer language be included in the Bill to address the issue of renewal of permits, as this was not adequately addressed.

Clause 11 needed to be more specific on what constituted a business that operated within the ‘national interest’.

The firm welcomed the change of work permit provisions addressed in Clause 12 of the Bill and submitted that if the regulations for the Bill were carried out properly then the clause could be helpful to businesses.

Deloitte and Touche opposed the increment of punitive measures against people who transgressed immigration laws contained in Clause 24 of the Bill.

Discussion
Ms Lovemore commented that the presentation had been one of the more controversial the Committee had heard. She asked why the firm felt that the Bill would make things simpler.

Mr De Ponte responded that the simpler that legislation was, the better it would be, as it addressed the issue of permits and business with more clarity.

Mr Mnqasela commented that the presentation had been well received and well thought out.

The Chairperson thanked the presenters and told those assembled that public hearings would continue on the next day.
 
The meeting was adjourned.