Immigration Amendment Bill [B32-2010]: proposed amendments; Impact of State of Nation Address on Committee's work

Meeting report

Department’s Proposed Amendments to Immigration Amendment Bill [B32-2010]
Mr Jackie McKay, Deputy Director General: Immigration Services, presented the Committee with the Department’s proposed amendments to the Immigration Amendment Bill.

Clause 7
The Department proposed to amend Clause 7 of the Bill on the change of status whilst in the Republic. The wording in the clause would be altered to allow for all visa holders, except those on a tourist/visitor visa, to apply for a change of visa status while in the country. Those on a visitor visa could apply for such a change only under ‘exceptional circumstances’ which they would have to explain in their application.

Clause 11
The Department would amend Clause 11 on the issuance of business visas. The words ‘national interest’ would be deleted and replaced with the words ‘published in the gazette from time to time by the Department responsible for Trade and Industry’. A foreign national applying for such a visa would undertake to comply with any relevant registration requirement set out in any law administered by the South African Revenue Service. The foreign national would employ permanently, the prescribed percentage or number of citizens or permanent residents, within a period of 12 months from the date of the issue of the visa.

Clause 13
The Department would amend Clause 13 on the issuance of a corporate permit. The permit could be issued by the Director General and the prescribed period of validity for such a permit would be addressed in the regulations to the Bill.

Clause 14
This clause amending Section 22 of the Immigration Act would be rewritten to allow for the granting of work permits to persons under the age of 25 who entered the country for work in community related organisations for a period of a year.

Clause 15
The maximum sentences for immigration law offences were amended in Clause 15 with most of the sentences being lowered.
 
Discussion
Mr M Mnqasela (DA) commented that there were still areas of the Bill which he was concerned about. He asked why it was necessary to change permits to visas. He was still concerned about the manner in which pre-screening at the various border posts would happen with respect to asylum seekers. He expressed concern for the provision in the Bill which called for foreign owned businesses to employ a South African-majority workforce, why did the same provision not apply to South African owned businesses? Which other countries in the world prescribed such laws with respect to foreign-owned businesses? This would discourage businesses from investing in South Africa.

Mr McKay explained that a visa, as it stood, only allowed a person entering the country the right to enter the country. Upon entry, said person would have to then be issued a permit to move around the country for the prescribed period set out in their visa. There was an incorrect public perception that permits were issued for a longer stay and visas were issued for shorter stays in the country. The interviews at the border posts would be dealt with more adequately in the regulations to the Bill and would be in line with human rights laws.  

The Chairperson commented that she was originally from the trade union movement and she was concerned that if the emphasis on employment was merely to mass-employ, then there might be an issue with workers losing out on benefits.

Mr Mnqasela said that it was important that work benefits be applied to employees regardless of the type of workforce. Benefits should be relative to the work that a person is employed to do. It was also important not to discourage people from investing in the country due to overregulation or unnecessarily tough provisions.

The Chairperson agreed with Mr Mnqasela but added that the country needed investment but not at the expense of the rights of workers.

Ms A Lovemore (DA) said that the country had labour legislation and that should be left to the Department of Labour rather than be done by the Department of Home Affairs. She recommended that the Department remove the word ‘permanently’ from Clause 11 dealing with foreign businesses having to employ a predominant amount of South Africans.

Mr McKay agreed to have the word ‘permanently’ removed from the provision.  Clause 11 stated that a foreign national applying for a business visa would undertake to comply with any relevant registration requirement set out in any law administered by the South African Revenue Service. The foreign national would employ permanently, the prescribed percentage or number of citizens or permanent residents, within a period of 12 months from the date of the issue of the visa.

Mr Monwabisi Nguqu, State Law Adviser, said that he agreed with the Department’s view on the matter that foreign businesses should ‘employ according to the laws of the country’. He agreed with Adv Gaum’s point raised in a previous meeting that regulations were published and presented to Parliament according to if a Committee requested to see the regulations.  

Mr Mukesh Vassen, Parliamentary Legal Adviser, agreed with Mr Nguqu on the provision about foreign businesses employing South Africans. He agreed with Ms Lovemore’s point that the word ‘permanently’ should be removed from the provision. He said that regulations were brought to Parliament prior to their being added to a promulgated Bill.

Ms Lovemore commented that the Department of Home Affairs regularly faced litigation on some of its faulty practices which infringed on human rights and that it was the duty of the Committee to test out the validity of some of the laws the Department sought to pass, to avoid cases of litigation. She sought clarity on Mr Nguqu’s assertion that regulations came back to Parliament prior to their being added to a Bill. She had never seen this happen and wanted to know to where the regulations went. Legislation was to be discussed by Parliament and not decided by the Department.     

Mr Nguqu said that Ministers were expected to submit regulations to Parliament within a set time period before those regulations were added to a Bill. The regulations were sent to Parliament for informative purposes and were published in the Announcements, Tablings and Committees Reports (ATC) publication. Ministers were constitutionally obligated to bring regulations before Parliament. There was no legislation at the present time which obligated Ministers to get Parliament to approve regulations before they were added to a Bill. The Interpretation Act mandated that regulations be submitted before Parliament.  

Mr Mnqasela said Mr Nguqu was correct in his previous response and that Section 101(3) of the Constitution made it necessary for regulations to be brought before Parliament for informative purposes. The point he and Ms Lovemore were attempting to make was that there needed to be a relationship built on trust between the Department and the Committee. There should not be a situation where regulations were used to legislate or be used to go against recommendations made by the Committee. 

Adv A Gaum (ANC) said that the issue of regulations in the Bill had been exhausted and discussed extensively. He suggested the Committee move on to discuss other aspects of the Bill.

The Chairperson agreed with Adv Gaum.

Ms Lovemore commented that she did not believe that the issue of regulations had been exhausted but she realised that there was no more new input to be made on the issue. She asked if a provision in Clause 7, about change of status in the country, mandated people accompanying a person to the country on a visitor’s visa to leave the country before applying for a change of status from outside the country. She asked if that provision could not be made clearer than it was. There was still no mention of transitional provisions and this was a problem for businesses which might be placed on a list of undesirables should the Bill be passed in its current form. The definition of conveyancers in the Bill was too broad and could have broad implications. She quoted an article published in the Business Day newspaper in which Mr McKay was quoted as saying that immigration practitioners would be disallowed from handling applications on behalf of those seeking visas or asylum documentation. She said that the Bill did not state what Mr McKay had been quoted as before. She suggested that the immigration practitioners needed to be given time to develop better self regulation as the sector was important. She commented that there was no reasoning to disallow immigration practitioners from practicing and that it was possible that the Department would preclude them in the regulations of the Bill. She quoted a Centre for Development and Enterprise (CDE) report on migration which stated that some of the provisions in the Bill under discussion could be challenged in the courts and sought comments from the Department on the report.

Mr McKay responded that the conveyancers which the Department meant in the Bill were conveyancers entering the country and not domestic conveyancers.

Mr Tsietsi Sebelemetja, Director of Legal Services: DHA, added that the Department would make the language clearer on what types of conveyancers had to be screened when entering the country.

Mr McKay said that when the Department was challenged in court it was mainly challenged on untrained immigration officials or inexperienced officials. In his view the challenges were never based on faults in Home Affairs laws. The proposed repeal of Section 46 of the Immigration Act, which would preclude immigration practitioners from handling immigration applications, had been proposed as a means to allow the Department to deal directly with applicants seeking documentation rather than using third party representatives. He had been misquoted by the Business Day newspaper on his views on immigration practitioners and did not feel that it was useful to try and explain the interview over again.

Ms Lovemore interjected and said that she wanted to know Mr McKay’s thoughts when he gave the interview and his thinking on the repeal of Section 46.

The Chairperson said that the repeal of Section 46 had been adequately and extensively discussed and there was no need to rehash the issue again.

Mr McKay said that he had only been asked to respond to questions posed rather than to respond retrospectively to the interview which he had given. He would only respond to that matter should the Chairperson see it fit for him to do so. He responded that the CDE report raised some pertinent issues and the Department was looking at policy gaps on migration, especially the issue of economic migrants who were in the country under an asylum seeker permit. The Department was of the view that its policy on migration was outdated and did not align with the SADC region’s in general. The Bill would fix some short term issues with regards to migration. The Bill was not retrospective and there was no need for transitional provisions in the Bill as it would not be applied retrospectively when it was implemented.

Mr Sebelemetja explained that, with respect to persons accompanying an individual on a particular type of visa for under a period of three years, they merely had to be included in that individual’s application for said visa and they would face no trouble in being allowed to accompany that individual.

Impact of President’s State of the Nation Address on the Committee’s work
Mr Adam Salmon, Committee Researcher, spoke on the impact of the President’s State of the Nation Address on the work of 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 if 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 if 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 of 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 in early March, 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 set to hold elections in the financial year, such as Egypt, Zimbabwe and Tunisia.

The following were some of the implications for Parliament arising from the 2011 key focus areas as outlined in the State of the Nation Address. Parliament would have to closely monitor progress on the implementation and the roll-out of the following initiatives as they play a fundamental role in improved job creation and service delivery:
▪ The Critical or Scarce skills Visas (permits) to be specified in Regulations emanating from the Immigration Amendment Bill will need to be published by the DHA as soon as possible.
▪ The scare skills lists needed to be monitored for coherence with priority sectors mentioned above.
▪ The DHA still needed to complete and report on the framework for information on skills usage and inflow and outflow of skills in the country.
▪ The skills transfer component of international labour contracts would need to be monitored through the Large Accounts Unit at the DHA and Business Unity South Africa.
▪ The expedited provision of visas for big events should be continued and be reported on by the DHA.
▪ Parliament needed to monitor the adherence of all sections of the Department in filling vacancies.
▪ Closer examination of the specific performance and delivery agreements of the Minister of Home Affairs was now possible and could be used by Parliament to ensure accountability.
▪ Conducting and reporting on ‘service user satisfaction’ surveys, including access to government services planned for 2011/12, may be used to benchmark service delivery performance of the Department.
▪ Parliament should be kept appraised of the continued securing of the Late Registration of Birth process as well as its phasing-out by 2012 in a manner which still protects children.
▪ The Multi-Agency Working Group on Procurement will propose reforms in procurement that the DHA would be accountable for.
▪ Training programmes for anti-corruption practitioners and implementation of related programmes should be included in the oversight of the Department.
▪ The Electoral Commission planned for flood ridden areas of the country and on conflict management in areas with contested demarcation as well as additional responsibility of special votes would need to be monitored prior to the May 2011 municipal elections.
▪ Progress on the unified visa (UNIVISA) and Visa exemption agreements could be monitored.

Mr Salmon said the Department had made progress in the past three years since the initiation of the Turnaround Strategy with the issuance of identity documents, and with delivery times which have improved year on year. The performance of the Department for delivery times for first and re-issued IDs at mid 2010/11 indicated an improvement from 2009. However, the expected improvement for the first two quarters of 2010/11 were not achieved. From 2007 to 2008 there was a considerable decrease in the delivery time when issuing first IDs. However, the delivery time dropped back to 90 days in 2009/10 from 60 days in 2008/09, due to delays in the verification of birth certificates and residence permits, as well as data input delays caused by the new biometric access control system. Continued challenges in terms of ID delivery time and accuracy remained a concern since IDs were taking longer to issue than the turnaround time targets for 2010/11 which the DHA conceded were unrealistic but which were nonetheless important to achieve.

Discussion
Mr Mnqasela commented that there should be movement on changing from the current identity document to an identity smart card which had been mooted for a prolonged period of time. There had been an issue with the tender but the issue needed to be addressed and sorted out. The ID smart card would pre-empt the fraudulent production of fake identity documents.

The Chairperson said that it might be useful to invite the Minister to a meeting with the Committee in which they could discuss the ID smart card and other pressing matters.

The meeting was adjourned.