Minister and Department of Home Affairs' responses to public hearing submissions on Immigration Amendment Bill (B32-2010)

Meeting report

Minister’s response to submissions received on Immigration Amendment Bill (B32-2010)
The Minister said that the amendments to the Immigration Act 2002 (Act No.13 of 2002) were precipitated by the identification of legislative areas that lent themselves to abuse.

She said that the issue of immigration practitioners or consultants had nothing to do with the Department of Home Affairs (DHA). What the Department wanted to say in its laws was that when a person required a service, he or she should come to the Department’s offices. There were good reasons for this, which included the wholesale abuse of the asylum status. There was nothing wrong with immigration consultants, but the people concerned were not even coming to the Department. The Department wanted physically to meet applicants. The Department was not quarrelling with the business of immigration consultants, but wanted to interact with the applicants themselves at the Department’s offices.

The Section 23 Permit allowed a person who was persecuted and running away from his or her country to transit legally to a refugee centre to apply for asylum. The law stipulated that the person needed to go to a South African port of entry and declare themselves in order to get the permit which then allowed them to enter the country legally so that they could go to a refugee centre to apply for refugee status. The Department was not doing away with this, but had decided that 14 days was too long for this permit and that no port of entry was 14 days away from a refugee centre in South Africa. Fourteen days was not necessary and therefore this was changed to five days, which was deemed more than adequate. Submissions had asked that the permit be extended to 28 days, which was far too long. The sole reason for the permit was to allow the person to get to a refugee centre in order to declare themselves as a refugee.

With regards to the Immigration Advisory Board (IAB), the Board composition would stay as was. Currently the Board was composed of business, organised labour, non-governmental organisations and governmental officials. 

Issue was also taken with the way the Amendments were drafted, with submissions expressing concern about pre-screening at ports of entry. There would not be pre-screening at ports of entry as such, but, according to international best practices which required asylum seekers to go to the nearest safe country, asylum seekers would be asked questions concerning whether this was in fact the case. The Department would not be doing much screening, but would ask only questions concerning whether South Africa was indeed the first nearest safe country in cases of asylum seeking.

With regard to the ‘change of status’ clause, in South Africa the provision allowing for such was abused to a very large extent. A lot of requests for status changes came from people who had visitor’s visas and then wanted to change them. This practice should no longer be allowed to be abused, as people came on these visas and then tried to change them illegitimately to longer stay visas.

The Department felt strongly that child passports be enforced as the issuing of them was related to halting child-trafficking. They wanted to see that the child in the document was in fact the child being carried. This would be much more effective than endorsements in parents’ passports. It was not accurate to say that some countries did not issue child passports.

With regards to permits issued for businesses, it was stipulated that business permits had to be issued in the interests of South Africa. The Minister did not understand what the issue was with this stipulation and questioned whose interest should be served by the law if not the nation’s.

In terms of the submission that penalties were too high, the Department would reconsider but still ensure that they were higher than the currents penalties for transgressing the Act.  A submission had protested against the requirement that 80% of the employees in a company be South African. She had discussed this with the Minister of Trade and Industry and would find a better way of coding it. Essentially, however, the principle was sound in her opinion. The Department would redraft this in a way that did allow for the acceptance of compelling cases. At the moment the Act said that at least five people in a company needed to be South African, which was ridiculous.

Discussion
The Chairperson thanked the Minister for her response to the issues raised by the submissions on the Bill.

Mr A Williams (ANC) said that according to some of the submissions the prescribed asylum procedures were unlawful according to international human rights laws. He asked whether there was any explanation about these procedures in terms of the submission.

Mr M Mnqasela (DA) that the abuse and corruption around Section 46 of the Act was a challenge that needed to be looked at. He felt that Section 46 needed to be retained. In terms of Section 23, the Department should retain the 14 days period of the permit as some refugee centres were very far from the border. The way to prevent people languishing in the streets was to ensure that refugee centres were established closer to ports of entry. The Minister had discussed this, but the Department needed to look at this closely as there was already litigation against the Department by Sonnenberg Attorneys. The Department needed to deal with the Act in holistic manner.

The Minister replied that Mr Mnqasela’s call to keep the 14 days provided no compelling reasons to do so and he needed to provide the Department with such reasons before it could consider his request.

Ms A Lovemore (DA) observed that the Department had said that it would not liaise with immigration practitioners and that it had just said to the Committee that one face to face consultation with the Department was necessary for applicants.  However these responses were very different from what they had been told before. With regards to asylum seekers, she understood what the Minster was saying. She added that the Department did not have an immigration policy and now wanted to change policy. She said that the Department had said that it would not ask too many questions in the pre-screening process and asked what would happen in cases where it decided to turn people away. She expressed concern over the ‘change of status’ clause in the Bill as it talked about the change of conditions pertaining to the permit as well. She understood the rationale behind preventing status changes, but questioned whether the inclusion of ‘conditions’ under this change meant that people would have to go out of the country to extend their permits.

With regard to businesses needing to be in the national interest, the Bill said ‘prescribed as national interest’ which meant that a list needed to be gazetted. Due to this she was concerned about the word ‘prescribed’ as it was not open to discretion. She stated that the 80% business composition reflected a major policy change and that the legislation being presented today was substantially different from that set out for public comment, which this version would not. She asked how this could be acceptable.

The Minister replied that it was interesting that when the Department was dealing with public hearings the Department had taken into account what the public had said and had liked what the public had said, but that Members were still taking issue. She did not see what the problem was. The Department had said that it would consult with the relevant ministries over the submissions that were useful.

She said that there seemed to be a misunderstanding over the ‘change of status’ with regard to permits. She did not remember any clause in the Bill that required people to leave the country to extend their stay. She said that, if she was referred to the part of the Bill that stated this, the Department would change it as the amendments were only supposed to deal with the status of the permit, not conditions.

Ms Lovemore directed the Minister’s attention to Clause 7 (c) of the Bill.

The Minister said that she understood what Ms Lovemore’s problem was and clarified that conditions did not refer to the length of time of the permit in this case. The clause had nothing to do with extending permits. It would be ridiculous to suggest that people needed to leave the country to extend their visitor’s permits. With regards to pre-screening, she understood Ms Lovemore’s concerns and would see whether they could accommodate the concerns raised.

With regard to immigration practitioners, no reasons were given by Members why practitioners should be the ones who brought in forms to the Department and not the actual applicants. She asked why there was this fear about applicants coming in and talking to the Department in person. She added that application by proxy was not desirable. She felt that there were no compelling reasons to change this amendment and that the Department would keep it. The applicant needed to come in person to the Department.

Ms Lovemore raised a point of order and stated that Members were in a Parliamentary process which she took very seriously and that the Committee had spent weeks deliberating on the Bill. She asked what the point of all this was if the Minister had decided to completely change the Bill now.

The Minister raised a point of order and said that she represented the Department and that the Committee had asked for their responses to the submission, which she was doing. In the end Parliament decided on the Bill, not just the Committee. She stated that the Department felt that it had not been given sufficient reasons to change or remove certain parts of the Bill and wanted to send the Bill through to Parliament as is. In Parliament the Bill could be debated further and finally decided upon. Therefore there was no need for Ms Lovemore’s point of order.

The Chairperson agreed with the Minister.

The Minister said that the 80% South African employee quota had been discussed with the Department of Trade and Industry (the dti). She added that the Department was not averse to being advised by the public on this.

With regard to business permits and businesses needing to be in the country’s national interests, the Department would not go out of their way to recruit for certain businesses. She added that the DA had lambasted the Department for giving permits to exotic dancers in Cape Town and that the Department agreed that exotic dancing was not in the country’s national interests. Therefore the Department would not go out of its way to assist such businesses. It may state in the regulations what types of professionals South Africa was looking for, such as those with critical skills that South Africa needed to actively recruit for as opposed to others that South Africa did not need. She added that the issuing of business permits needed to talk to national needs; if South Africa had a surplus of lawyers the country did not need to recruit lawyers.

Mr Mnqasela said that he had attempted to give reason for his views and that he would reiterate them.  With regards to the 14 days for the Section 23 Permit the current approach was that people came into the country and could not be expected to reach the nearest refugee centre within five days. At the Beit Bridge border post he had personally seen people stuck there with the nearest refugee centre being Gauteng. The assumption was that these people had the money to get to the refugee centre. Furthermore these people may need time to rest after escaping their country of persecution. Another issue which further frustrated the problems of potential asylum seekers was not being able to speak South African languages, which would further delay their ability to get to a refugee centre. Giving them a window of 14 days to get to a refugee centre was much more practical than the mooted change to 5 days given the current situation. 

With regard to immigration practitioners, they were helping people who could not go to Home Affairs; these people included professionals who possessed special skills in industry and were very busy and therefore could not go into Home Affairs offices.  He stated that this was the situation that existed and that the Department should not remove the roles of immigration practitioners as these practitioners also created jobs. Instead, the Department should rather regulate these practitioners. There was also no definition of ‘critical skills’ and ‘exceptional circumstances’ which left the matter open to discretion. In this light it meant that the IAB’s composition needed to be explained as it would be these people who would be dealing with such matters.

The Minister replied that there was no place in South Africa that was five days away from a border and that there was an asylum office at Beit Bridge and more than one in Gauteng. There was probably no need even for the one in Cape Town as it was not near any land border.  She said that Mr Mnqasela had not explained where someone would be able to get money within 14 days if they had none. She was still not convinced that the Department should retain 14 days for the permit and added that it would be different if Mr Mnqasela was motivating for refugee centres to be moved closer to the border.

Mr A Gaum (ANC) thought that the Minister was correct in demanding sound reasons. Relating to business visas he said that the Department would need to publish which sectors were in the national interest. He said that the argument from the submission received was that people above a certain investment threshold be allowed to invest in a sector of their choice. If the Department specifically wanted to prevent strip clubs, it should rather add a qualifier. A point made by immigration practitioners was that there was a constitutional right to representation. It might therefore be a problem if the Department was being seen as taking away that right. There was also the matter of immigration practitioners representing people who were not in the country, such as chief executive officers (CEOs) of companies. He understood that there was a misuse of immigration practitioners in some cases, but there was logic in allowing representation. He welcomed the statement that the Department would re-examine pre-screening and added that it should specify that at ports of entry it would determine whether South Africa was the first safe country for asylum seekers. This should be what pre-screening involved. 

With regards to amending Section 35 to allow for mandatory Advanced Passenger Processing (APP), a submission had been made that raised the issue of the potential for misuse of personal data and that the legislation should stipulate safeguards around this.

The Minister replied that the Department did not regulate investment and that other departments dealt with this. This law did not regulate investment. The reason that the Department did not want to regulate the list of critical skills was that the country’s needs were not static. The list would rather serve as a guide.

The Department was not interested in keeping personal data with the APP process and simply wanted to know if anyone was on the Interpol or any other criminal watch-list. In domestic cases they also had an interest due to the movement of illegal immigrants within the country who had circumvented border posts.  The APP had worked very well during the Soccer World Cup.

In terms of the right to representation, there were many lawyers who made a lot of money representing foreigners in the country. This was allowed, but they wanted stop cases where large groups of people got into the country and then went to an immigration practitioner who thereupon dealt with the Department resulting in the Department having no contact with the actual applicants at all.

The Department already dealt with big business directly and was going to streamline this process further. No-one was stopping representation, what the Department did want was for applicants to submit their forms in person so that the Department could at least have contact with them in cases that did not involve big business or foreigners outside the borders of the country.  Therefore there was no legitimate argument around this point.

In terms of border checks or pre-screening the Department would revisit the issue. Part of the rationale for instituting these checks was that many people were economic migrants and not actual asylum seekers. The granting of asylum status was therefore not correct and in some cases it prevented these people from having access to better opportunities that they would receive if they had received their visas under a different dispensation.

The Chairperson said that the Minister had extensively dealt with Members’ questions and that they needed to go through the Department’s response document.

Ms Lovemore raised a point of clarity with regard to the ‘prescription’ of national interests. She said that the Minster had stated that the Department would not actively facilitate permits for businesses not considered in the nation’s interest, but would actively recruit people for areas that were in the nation’s interests.  However the Bill stated that permits would only be issued in cases of national interest.

The Minister replied that national interests were not static and that even in cases where the applicant was not in possession of a priority skill the Department may still issue a permit. The list would show the Department where they had an explicit obligation to grant people permits.

Department of Home Affairs (DHA) responses to public hearing submissions received on the Immigration Amendment Bill (B32-2010)
Mr J McKay, Deputy Director-General, National Immigration Branch, DHA, read through the document. The majority of the submissions were met with no amendments to the Bill.  Submissions from Business Unity South Africa (BUSA) and the Banking Association of South Africa (BASA) were welcomed around the new definition of ‘marriage’. Deloite and Touche and BUSA had raised issue with the power that the Minster would have to appoint members of the IAB. The Department’s response was that the IAB served as a recommendation board to the Minister and would be appointed as stated in the Bill.

People against Suffering, Oppression and Poverty (PASSOP), BUSA and the Law Society of South Africa (LSSA) raised issue with amendments to Section 9 of the Act as it would facilitate child-trafficking. The Department responded that the opposite was the case and that the proposed amendment was aimed at curbing child trafficking, as the details of the child which were endorsed in the passport of the adult person cannot be matched against the child and this poses serious challenges in relation to the fight against child trafficking.

Peninsula Immigration said that a foreigner holding a visitor’s permit should not be allowed to change status of that permit and may only be considered for extension. The Department welcomed the suggestions and would redraft the provision to specifically exclude holders of visitor’s permits and medical treatment permits from changing their status whilst in the Republic.

Deloite and Touche said that “exceptional circumstances” with regard to an application for change of status or conditions on permit/visa was not defined. The exceptional circumstances would be prescribed in the Regulations by the Minister as provided in the Bill.

The Wits African Centre for Migration and Society (WACMS) said that the provision that an application for change of status or conditions for visa/permit may be granted under “exceptional circumstances” introduced an “insurmountable barrier” and would consequently discourage “skilled migration”. The Department responded that the change of status was currently abused by those persons who entered the Republic under the guise of being visitors who then applied for change of status whilst in the Republic. The view that the amendment would be a barrier and discourage skilled migration was based on the misunderstanding of the intention of the proposed amendment. Anyone entering the Republic should have clear reason and apply for the specific visa or permit whilst in his or her country of origin.

Submissions from BUSA , LSSA and the Consortium for Refugees and Migrants in South Africa (CoRMSA) said that a  definition of ‘national interest’ in clause 11 should be included in the definitions section of the Bill and to allow for a business visa to be granted to businesses determined to be in the “national interest”. The term “national interest” was not defined in the bill and needed to be. The Department replied that the term “national interest” was not a new concept introduced by the Bill but was being used in the Act. The Department was in discussion with the Department of Trade and Industry and there would be a meeting of the respective Ministers on this provision. In implementing this provision the two Departments would be working together. They said that following consultation with Department of Trade and Industry, the provision would be redrafted to ensure that those when issuing permits there was a balance between businesses regarded as in the national interest and those that were not, without allowing all types of businesses to qualify.

Discussion
Mr Gaum said that the first page of the responses it was mentioned that the amendments should provide for a formal channel of communication for the IAB which Mr McKay had not dealt with.  The child passport matter was also raised by a submission and Mr McKay had failed to address the statement that a child passport might facilitate child trafficking. On page five of the document with regard to ‘exceptional circumstances with regard to an application for change of status or conditions on permit/visa not defined’, he questioned whether under the Regulations was the best place to deal with the matter. A submission had indicated that there was a provision in the Bill for permit changes which spoke to the conditions of the permit. The Minister had said that conditions did not refer to time; however, this needed to be clear in the Bill. 

He got the sense that the Ministry wanted to prescribe what was in the country’s national interest, which would mean that they would need to provide a list. He asked why they needed to exclude businesses if there was a market for them. Businesses would fail or succeed based on the South African market. There was clear criticism of the term ‘critical skills’ and he asked whether this term was not more exclusive than ‘exceptional skills’.

He raised the issue of the removal of Section 22(b), which related to special permits for youths under the age of 25 and asked if there was not another way of dealing with this instead of simply removing it. The removal was precipitated by its abuse by exotic dancers.

Mr McKay replied that 25 year olds could simply apply for a work permit and that there did not need to be any special dispensation for them. With regard to the conditions of a permit, the conditions did not include time. The conditions talked to what you could and could not do as a holder of a certain type of permit. Timeframe was not a condition, but rather the duration of the permit which was stipulated by Section 11 of the Act. The Department was seeking to limit the ability of holders of visitor’s and medical permits from changing their permits to a longer duration permit. Skills based permits were different and would not be affected.

Adv T Sebelemetja, Director, Drafting, DHA, replied that the Department would look at the issue of formal channels for communication. With regard to the Business Unity South Africa (BUSA) comment that having a child passport would make trafficking easier, the Department would ensure that there were checks and balances that determined whether the correct person was accompanying the child. He added that they would revise the sections dealing with national interest and try and rephrase it.

Mr McKay added that BUSA may be right, but that the Department’s standpoint was that having biometrics of children was better than not having anything and that at least the Department would have a place to start in cases of child trafficking, which was better than the current situation.  He added that the term ‘critical’ was wider than the term ‘exceptional’ and that the Department felt that it was a broader and better term as skills that were critically needed may not be exceptional.

Adv D Erasmus, Chief Director, Legal Services, DHA, said that ‘exceptional circumstances’ could change and that if the Department put it in the legislation and it changed down the line the Department would have to go through the whole Parliamentary process again, whereas if the ‘exceptional circumstances’ were in the Regulations they could easily be changed.

Ms Lovemore said that she was intrigued by the responses from the Department as the Centre for Development and Enterprise (CDE) had put in a damning submission that this Bill needed to be redrafted and the Department had not responded to this submission at all. The only responsible thing that the Committee could do was call for the redrafting of the Bill. The Law Society of South Africa (LSSA) was very highly regarded entity and everything it had said was noted with no amendments. She found it abusive that the Department was ignoring the relevant parties. There was a serious problem with the Bill as it had no transitional provisions.

Another serious issue was that the Bill was making sweeping policy changes and that while the Minister said that the Department had had public consultation on the Bill, the document before Members now was substantially changed and would not be put before the public. She asked how the public was expected to participate and asked whether the Department had done regulatory impact assessment of the Bill or costed what its effects would be.  It seemed that everything was going to be put into the Regulations, which meant that the Committee was working in a legislative vacuum. She stated that she had major reservations about the Bill.

It was not the Department’s mandate to keep strippers out of the country and that if there was a market then it was so. It was not the Department’s job to engage in moral prescriptions and become the Department of Moral Regeneration. She asked when the Regulations would be published and stated that they should be considered in parallel with the Bill. Members could not give the Department a blank cheque.  National interest needed to be reconsidered. She asked what the process forward was and when the Department would come back with the redrafted sections. She said that the quota and exceptional skills combined permit criticism was not addressed. With regards to the under 25 cultural exchange permit, she stated that the permit was for cultural exchange and not work, which meant that people who came under this permit would not be able to get work permits as volunteering was not work. With regards to APP, the Bill currently covered ‘any other vehicles’ which meant that taxis would be required to partake in APP which was ridiculous.

She added that people needed assistance to liaise with the Department and that the number of successful immigration practitioners attested to the need for them. It was proven that the deterrent to crime was not the sentence meted out but rather the confidence of being caught and that the length of the sentence did not matter until the confidence of being caught had increased.

The Chairperson replied that most of the questions raised by Ms Lovemore had already been answered.

Mr Mnqasela referred to Clause 15 of the Bill which dealt with decreasing the asylum permit form 14 days to five days and said that the problem here was that some of the people concerned would become victims of arrest and deportation if they did not have enough resources to travel from point A to point B. Even at Home Affairs offices people already queued for days and the legislation would create even more problems for these people.  He added that pre-screening at border posts was problematic as border officials were not skilled to do this.

The Chairperson said that she was not sure whether Mr McKay needed to respond as the Minister had already talked to these issues.

Mr McKay replied that the Department agreed that it should review pre-screening at the border due to the concerns raised and that it would come back with the redrafted amendments. The process was that it would come back to the Committee with the new amendments.

He stated that he would not get in to the issues Ms Lovemore raised except for one. He was confused by her statements that there was no immigration policy and her constant reference to the ‘changing of policy’. The bottom line of the CDE submission was that the Department did not have an immigration policy. This was untrue as the Bill was informed by it. The Preamble to the Act contained the policy, which he read out. The Department’s intentions were to close loopholes in the Act and strengthen the Act.

Adv Sebelemetja added that he had gone through the CDE submission and that the issues raised by it were also raised in other submissions and that the Department dealt with duplicated submission points together. With regards to transitional provisions, he stated that there was no need for them as currently permits were valid for their duration and that when people needed to reapply they would be subject to the new provisions. Current permits were valid until they expired. With regards to sentence lengths for contraventions of the Act the Department would review the sentence lengths as stated. However, as the Department moved to engaging with applicants face to face the Department would increase the confidence of being caught. He stated that Ms Lovemore was aware that the Department was still receiving training on the new process of regulatory impact assessments. He asked that the Department be given time to revise the Bill in light of the discussion.

Adv Erasmus said that once the Bill had been passed into an act the Regulations would be implemented, so the Department wanted firstly to finalise the Bill before working on the Regulations. With regard to the 14 day permit change to five days, he stated that the Department could and should not legislate for inefficiencies and that it wanted to move forward. He added that the R6 billion referred to as pending litigation cases was actually contingent liability and not claims against the Department.

The Chairperson said that time was running out.

Mr Mnqasela said that if there was an immigration policy it should be made easily available in the public domain. He raised a point of clarity that there was a White Paper on immigration which had never really materialised.

Mr McKay said that they were not trying to be disrespectful, but Ms Lovemore had said that there was no immigration policy and then mentioned policy changes, which he struggled to understand. The Preamble to the Act was a policy statement. The Department had said that they needed to review policy because in the Act the Department did not take account of economic and unskilled migrants and that the consideration of the types of immigrants was what precipitated the Bill.

The Chairperson stated that there was no time left. She thanked the Department.

The meeting was adjourned.