Immigration Amendment Bill: Further deliberations; State of the Nation Address: Impact on Department and Committee

Home Affairs

13 February 2011
Chairperson: Ms M Maunye (ANC)
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Meeting Summary

The Committee met to discuss changes to be made to the Immigration Amendment Bill [B32-2010] (the Bill). Amendments to certain clauses in the Bill which had been discussed in a previous meeting were highlighted. The Department proposed an amendment to the clause in the Bill which pertained to the change of status of permit whilst in the Republic. It also proposed the deletion of the words ‘national interest’ from a clause pertaining to the issuance of business visas. The Department would alter language around a provision in the Bill relating to the pre-screening of persons entering the country to prevent undesirable people from doing so. There would be a lowering of maximum sentences against those who violated immigration laws, except in the case of officials employed by the Department. The Department proposed the reintroduction of a provision which would allow persons under the age of 25 from foreign countries to obtain permits or visas to seek work in community based organisations. Members extensively discussed the provision addressing pre-screening of people entering the Republic, and stressed that this must be carefully worded to avoid ambiguity, and to show that it was directed to ascertaining whether an individual seeking to enter the country had a criminal record, and was in possession of travel documents, but would not be directed against vulnerable people with legitimate reasons for seeking refuge. The provision seeking to limit the application for a change of permit status whilst in the country would also need to be re-worded. Members stressed that regulations should not be used to legislate and wanted regulations to be referred to the Committee before being passed. They welcomed the lowering of maximum sentences for immigration law violations, and the reintroduction of intra-company permits. They extolled the importance of working cooperatively with the Department.

The Committee Researcher presented the Committee with an analysis of the impact of the State of the Nation Address on the Department of Home Affairs and the work of the Committee. Key priorities included job creation, improved service delivery, the continued fight against corruption, the fourth local government elections, and the granting of international assistance aiding democracy and the election process in countries such as Egypt, Zimbabwe and Tunisia. Members noted that little was said directly about Home Affairs in that Address, which pointed to the improvement of the Department in dealing with civic matters. They commented on the need to embark on observer missions with the Independent Electoral Commission, and to work in conjunction with other portfolio committees to align policy. Members would consider the analysis and discuss it further at another meeting.


Meeting report

Immigration Amendment Bill [B32-2010]: Department of Home Affairs presentation on proposed amendments
Mr Jackie McKay, Deputy Director-General: Immigration Services, Department of Home Affairs, presented the amendments that the Department of Home Affairs (DHA or the Department) was now proposing should be made to the Immigration Amendment Bill.

Firstly, the Department proposed an amendment to Clause 7 of the Bill, relating to the changing of permit/visa status whilst in the Republic. The revised clause would allow for a permit/visa holder to apply for a change of status whilst in the country, except for people in possession of a visitor/tourism visa, who could only apply for a change in exceptional circumstances, and these circumstances would also need to be clarified in the application.

Clause 11 of the Bill related to the granting of business visas. Several public comments had related to the words “the national interest”. The Department now suggested that the words “the national interest” should be deleted and replaced with the words “published in the Gazette from time to time by the Department responsible for Trade and Industry”.

In Clause 15, the Department proposed the deletion of the words “after having established, in the prescribed manner”, in relation to pre-screening asylum seekers entering the Republic. These words would be replaced with the phrase “as prescribed”.

Mr McKay said that the Department also proposed amendments to Clause 24 of the Bill, pertaining to punitive measures against those who violated immigration laws, by proposing the lowering of the maximum sentences prescribed under the clause.

Mr Tsietsi Sebelemetja, Director: Legal Services, Department of Home Affairs, presented further amendments to the Bill. He noted that Clause 12 of the Bill, relating to intra-company permits, would be reintroduced. The Department would also amend Clause 13, in relation to the issuance of a corporate permit. This permit could be issued by the Director General. The prescribed period of validity for such a permit would be addressed in the regulations of the Bill.

Mr McKay then added that the Department would reintroduce the clause relating to the granting of work permits to those aged under 25, who entered the country to serve short stints in community related organisations. Mr McKay requested that the Department be given more time to consult on the provision before formally introducing it for consideration.

The Committee agreed to his request.  

Discussion
Mr Monwabisi Nguqu, Senior State Law Advisor, Office of the Chief State Law Advisor, asked the Department to clarify its stance on the punitive measure of 15 years imprisonment, as set out in Clause 24, that could be imposed on a Department employee who played a role in the violation of immigration laws.

Adv Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, responded that the punishment terms had not been changed in this clause, because the Department viewed the violation by an employee in the Department as being very serious, and therefore justifying the maximum sentence of 15 years.

Ms A Lovemore (DA) said that the alteration to Clause 7, relating to the change of status whilst in the Republic, was inadequate. She said that it seemed to imply that only people who held a visitor visas could apply for the change, whilst other visa holders had to apply under exceptional circumstances.

Ms Lovemore added that the Democratic Alliance (DA) was sceptical of the proposed use of a Gazette for dealing with the issuing of business visas. Lists published by the government seemed to be out of date, it would be cumbersome to ensure that they were up to date, and the provision would be more restrictive in the long term for people seeking such a visa. The Department was effectively not allowing empowerment to come from foreign investors.

Ms Lovemore commented that the DA welcomed the reintroduction of the business waiver in the Bill, as well as the intra-company business transfer permit.

Ms Lovemore voiced her concern about the use of regulations, which would be drafted only after the Bill had gone through the Parliamentary process, and urged that there was a need for consultation on those regulations.

Ms Lovemore, in relation to Clause 24, welcomed the proposed reduction in punitive measures. Although she was aware that the Committee could not regulate for administrative inefficiencies, the Department should be cognisant of the inefficiencies of some of its staff, as well as their lack of experience, in processing applications for permits. The Department had to be realistic rather than idealistic when imposing punitive measures.

Mr McKay responded that the wording around the provision relating to change of status whilst in the Republic would be changed, in order better to represent the intention of the Department to allow for people to apply for a change whilst in the Republic. This excluded those who were on a visitor visa, who would have to apply under exceptional circumstances. He said that people who were awaiting a response from the Department on their application for a particular visa would not face punitive measures. These punitive measures were targeted at people who overstayed their time in South Africa.

Mr McKay commented that, in relation to the gazetting of information, the Department did not believe that South Africa could permit just anyone being granted a business visa. There was debate on whether government had under- or over-regulated business visas, but it must be recognised that regulation was necessary. That was the intention behind the gazetted lists. The Department of Trade and Industry was the appropriate Department to produce the gazetted lists.

Adv A Gaum (ANC) said that the African National Congress (ANC) welcomed the reintroduction of Clause 14 of the Bill, which related to the limitation of visas for foreign interns/volunteers. The ANC had not thought that the initially proposed deletion of this clause would have been helpful, as it was beneficial for South Africans to be exposed to foreign nationals. He explained that the intention of Clause 7 was not to exclude other visa holders from being able to apply for a change of status whilst in the Republic, but that those holding visitor visas would have to show the exceptional circumstances surrounding their application. He said that better wording needed to be found for this provision, to avoid ambiguity.

Adv Gaum noted that the ANC also welcomed the proposed alterations to Clause 11, with the removal of the words “national interest”.

Adv Gaum asked why there was a provision in the Bill that mandated a percentage of South Africans to be employed in a foreign owned business, and said that issue could be addressed in the regulations. He added that the ANC supported the provision in the Bill requiring mandatory pre-screening of people entering the country. The Department would, however, have to look at international practice and jurisprudence, to ensure that the wording in the provision was clear and in line with international human rights laws.

Mr McKay responded that the Department would look again at the wording around the pre-screening provision. He added further to these comments when answering a later question.

Adv Gaum noted that the ANC also welcomed the lowering of punitive measures in Clause 24. He stressed that these sentences were maximum sentences rather than minimum sentences.

Mr M Mnqasela (DA) welcomed the comments made by Adv Gaum and Ms Lovemore. He suggested that the regulations under the Bill should be tabled to the Committee by the Department.

Mr Mnqasela asked, in relation to Clause 13, why there was a lower time period allocated to business visa applicants.

Mr Mnqasela also raised the issue of pre-screening of people entering the country, and commented that it was unacceptable if refugees were handled by inadequately trained or inexperienced officials. This Committee should canvass the opinions of the Portfolio Committees on Defence and on International Relations and Cooperation, as to whether a pre-screening process would be consistent with any international conventions to which South Africa was a signatory.  Restrictive provisions with regard to granting business visas would be destructive to the country and would create negative implications for the economy. 

Mr McKay responded that pre-screening would only apply to ascertain whether or not an individual was eligible to enter the country, based on whether that person had a serious criminal record in his or her country of origin and whether s/he was in possession of travel documents. The screening of vulnerable people with legitimate reasons for seeking refuge in the country would not be instituted. The purpose of the provision was to protect the Republic rather than prejudge people upon entry into the country.

The Chairperson said that the country needed to address the issue of unemployment with a view to assisting South Africans.

Adv Gaum reiterated that the ANC was in support of a limited pre-screening provision being included in the Bill.

Adv Gaum asked why the Department had not removed the reference to “national interest” from Clause 18 of the Bill. He asked whether it would not be best for the Department to table regulations on the pre-screening issue to the Committee.

Mr McKay responded that the phrase would be removed when subsequent amendments were made on the Bill. There needed to be uniformity in the drafting of the Bill.

Mr Mnqasela asked why the regulations could not be tabled to the Committee. He commented that he understood that the mandate to draft regulations rested with the Minister, but said that the regulations could not be used to make new legislation. The Committee wanted to be privy to the regulations, and needed to work closely with the Department rather than have a situation where there was animosity.

The Chairperson agreed with Mr Mnqasela that the Committee and the Department had to work together. She asked the State Law Adviser for his opinion on the issue of regulations.   

Mr Nguqu said that the making of regulations was the prerogative of the Minister, granted to her by Parliament. The prerogative differed from one piece of legislation to another, but generally would be written to address or clarify instances not foreseen in or covered by the Act itself.

A Member of the Committee commented that it was important to first give consideration to South African nationals, since the legislation sought to protect their interests. The Department should not be hindered in its ability to regulate the granting of business visas. 

Adv Gaum commented that the Committee could not perform the functions of the Department at a managerial level, and should therefore grant the Department the autonomy to advise on the best route to address issues in that area. The Committee should not seek to micro-manage the Department.

Mr Mnqasela said that he hoped that the discussion would not devolve into a partisan squabble. The discussion needed to be cooperative. No one was seeking to micro-manage the Department. Members of Parliament understood their duties and had a role to play, as part of their oversight function, to ensure that proper legislation was passed. He reiterated that regulations needed to be brought before the Committee, so that Members knew what the Department would be pursuing when implementing the Bill. Pre-screening could not be used as an excuse for cross-examining asylum seekers who had legitimate grounds for seeking asylum in South Africa.

The Chairperson said that the issue of pre-screening had been extensively covered. In order to avoid compromising the security of the country, some kind of pre-screening needed to happen.  

Ms H Makhuba (IFP) agreed that some form of pre-screening had to be done to protect the country from undesirable elements entering the Republic.

Ms Lovemore said that the DA agreed that some pre-screening should be implemented, but, as presently worded, it appeared that this was aimed at asylum seekers. She suggested that the pre-screening be directed against all people seeking visas in the country, rather than one group of people.

Adv Erasmus replied that the Department would reword the provision on pre-screening, to make it explicit that the provision was not meant as a prejudicial block, but as a means to prevent undesirable people from entering the country.

Mr McKay reiterated that the pre-screening provision was targeted at preventing undesirable people from entering the country.

Ms Lovemore voiced concerns over the “first safe country”, which seemed to be creeping into the policies of the Department of Home Affairs policy. There were no agreements or legislation to support the “first safe country”, which would not be implementable until such agreements were in existence.

Mr McKay said that it was unfortunate that the issue of “first safe country” was being brought up, especially since it did not pertain to this Bill.

State of the Nation Address: Home Affairs Perspective
Mr Adam Salmon, Parliamentary Researcher, presented the Committee with an analysis of the State of the Nation Address and its impact on the Committee.

The 2011 State of the Nation Address outlined some key priorities that would have an impact on the Department of Home Affairs (DHA). These included:
-Job creation through meaningful economic transformation and inclusive growth in six priority areas
-The need for improved service delivery, which must move faster, and public service performance and monitoring
-The continued fight against corruption
-The fourth local government elections
- Providing international assistance in pursuit of democracy, and elections in countries such as Egypt, Zimbabwe and Tunisia.

Improved service delivery and counter corruption were continued areas of emphasis from previous years, which remained important for DHA. The increased emphasis on job creation would require more specific intervention from the DHA, in terms of securing the foreign skills needed to create jobs and investment in key sectors and in training entrepreneurs in the short to medium term. The promotion of elections, both municipally and on the African continent, was likely to require significant additional effort, oversight and expenditure by both the Department of Home Affairs and the Electoral Commission, and this fell under their budget allocation in 2011.

The six priority areas for employment mentioned by the President were infrastructure development, agriculture, mining and beneficiation, manufacturing, the green economy and tourism. The role of the DHA was to ensure that the skills shortages in these sectors could be filled with foreign expertise in order to stimulate investment, enterprise and unskilled labour in the short and medium term. The Critical or Scarce Skills Visas or permits in those sectors would thus need to be published by the DHA as soon as possible. Research by the Centre for Development and Enterprise (CDE) and the Wits African Centre for Migration Studies indicated that the average education and skills level of foreigners already in the country was higher than that of South Africans, and that everything from small through medium to large foreign enterprises served to create rather than compete for employment. An organised skills transfer mechanism could be built into the contract requirements of corporate and other permits, and this could be facilitated by the newly established large accounts unit at the DHA, in collaboration with big business representatives such as Business Unity South Africa (BUSA). Consideration would need to be given to whether the threshold for investment by foreign companies should continue, with a waiver, to stimulate investment by foreign small, medium, and micro enterprises (SMMEs) in certain important sectors, or whether local SMMEs should be protected completely.

With regard to the upcoming local government elections, the Committee would need to engage with the IEC as to the position in flood-affected areas and areas with contested demarcation. The additional responsibility of special votes would also need to be monitored. Progress on the provision of identity documents, to avoid the situation where some could miss the next registration period next month, could be requested from the DHA.

South Africa would have many regional and international commitments throughout the year and this meant that the IEC may need further funding to boost its capacity to carry out observer missions in countries experiencing political strife and who were possibly to hold elections in the financial year, such as Egypt, Zimbabwe and Tunisia.

Discussion
The Chairperson thanked Mr Salmon, and asked if Members had any comment.

A Member thought that the Committee should be given time to study the document presented by Mr Salmon, and then to make suggestions at the next meeting. 

Mr Mnqasela commented that little was said specifically about Home Affairs in the latest State of the Nation Address, which seemed to indicate that there was improvement on civic issues and that the Department was making progress. He agreed that the Committee needed time to study the document before making suggestions at the next meeting. He asked that the Independent Electoral Commission (IEC) needed to coordinate with the Committee when it undertook observer missions, so that the Committee could also send its members, as this fell under the purview of the Committee’s work. He commended and thanked Mr Salmon for his presentation.

The Chairperson said that she shared Mr Mnqasela’s concern that the Committee should accompany the IEC on observer missions. She would take up the issue with the Chair of Chairs, and asked Adv Gaum to take it up also with the Office of the ANC Chief Whip.

Ms Lovemore also commended Mr Salmon on his presentation. She believed the Committee should work on a long term vision and have meetings with other portfolio committees to improve the alignment of policy. She noted the need for bringing in more foreign skilled people to address growth issues and encourage skills development. Interaction with the Portfolio Committees on Trade and Industry and Labour would be useful.

The Chairperson said that the Committee would meet again to propose additional issues to be included in the Committee’s analysis of the State of the Nation Address.  

The meeting was adjourned.



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