Immigration Amendment Bill [B32-2010]: proposed amendments & Democratic Alliance submission

Meeting report

Further Deliberations, clause by clause Voting and Consideration of the Immigration Amendment Bill [B32-2010]
Mr Tsietsi Sebelemetja, Director: Legal Drafting, Department of Home Affairs, presented the Committee with the Departments proposed amendments to clauses in the Bill. The Department had taken on some of the suggestions made in the previous meeting. There would be consequential amendments included in the Bill as a result of the proposed change from the use of ‘permit’ to ‘visa’.

Clause 2
The Department proposed to add a definition of ‘visa’ in the Bill. The clause would also provide prescriptive definitions of what constituted a ‘port of entry visa’. Such a visa would grant the holder the authority to travel from a port of entry of another country to any port of entry of the Republic for the purposes of admission into the Republic, as contemplated in Section 10A of the Immigration Act.

Clause 7
The wording in the clause was 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. The clause was also consequentially amended due to the substitution of ‘permit’ for ‘visa’ in the Bill.

Clause 8
The Clause was consequentially amended to use ‘visa’ instead of ‘permit’ and the words ‘port of entry’ were added to the clause.

Clause 12
The clause which relates to the issuance of work visas was amended to include powers granted to the Director General of Home Affairs. The Director General would grant a work permit to a foreign national in instances where it had been shown that that employer could not employ a South African to fill a vacant post or in conditions where that foreign national possessed critical skills. 

Clause 26
The Department proposed to scrap the clause from the Bill. It proposed to substitute ‘permit’ for ‘visa’ in the Immigration Act.

Discussion
Ms Carin Booysen, State Law Adviser, said that there might be a danger in merely replacing words in the Bill with the intention of amending the Immigration Act. A clause should be included in the Bill which stated that wherever the word ‘permit’ existed, it should be substituted with the word ‘visa’. She cautioned that there was a danger in leaving parts of the Act up for interpretation and debate, there could be unintended consequences.

Mr Sebelemetja responded that the Department noted the concerns raised by the State Law Adviser but changes had been made according to the suggestions and recommendations of the Committee.  

Adv A Gaum (ANC) said that he did not understand the Department’s response to Ms Booysen’s comment. Ms Booysen was making the point that there should be a general clause in the Bill which stated that all reference to ‘permits’ be substituted to ‘visa’. This would prevent the chances of overlooking a clause which retained the word ‘permit’.

Mr Sebelemetja said that he noted the commented. If Clause 26 of the Bill were to be reinstated to address the issue of the substitution of ‘permit’ to ‘visa’, it would require the alteration of a paragraph in the clause to properly deal with the issue.   

The Chairperson sought and got approval from the Committee to reinstate Clause 26 of the Bill.

Ms A Lovemore (DA) said that the number of clauses in the Department’s new version of the Bill had too many consequential changes which did not seem consequential to her. There were too many changes to the Bill and the Committee was not in a position to vote on the Bill. She asked why the terms and conditions on the medical visas were left out. She asked about Clause 9(5) which related to visitor’s visas and the preconditions around issuing such a visa. The provision had not been in the original Bill. The provision on the issuing of business visas had been removed and then put back into the Bill, bringing into question how much thought had gone into the Bill in the first place. She asked if the provision was the same as the cross-border provisions originally removed from the Bill. She sought an explanation on Clause 14 which proposed an ad hoc fee for medical visa applicants. She asked why qualified holders of a relative’s visa could not be allowed to work in the country when they had useful skills to offer. She asked why transitional provisions were not incorporated into the Bill especially when there were people who would be affected by the new provisions. How would the Director General determine the maximum number of foreigners without consulting other relevant departments? She expressed shock at the apparent lack of knowledge of the work being done by the Committee on immigration by other government departments. She sought clarity on the exchange visas provision. She asked about additional crimes under Clause 24 and the powers granted to the Director General in granting transitional asylum visas.      

Mr Jackie McKay, Deputy Director General: Immigration Services, DHA, responded that most of the issues raised by Ms Lovemore were addressed in the Immigration Act of 2002 and the consequential amendments in the Bill pertained to provisions already in the Act. The word ‘permit’ was being replaced by ‘visa’ via Clause 26 which was initially going to be deleted but would be reinstated. The changes which Ms Lovemore had raised were mostly consequential changes which were merely accommodating the provisions in the Bill.

Mr Sebelemetja added that all the visas were interconnected and medical visas were linked to a visitor’s visa. The three month provision was addressed according to the nature of a medical visa’s required treatment.

Mr McKay reiterated that the provision on relative’s visas was in the Act and stated that the holder of such a permit could not conduct work.

Mr Sebelemetja added that when a person applied for a corporate visa, he/she denoted how many staff members that person would need visas for and the DG would only issue a visa in consideration of that number.

Mr McKay reiterated that all other issues raised by Ms Lovemore were in the Immigration Act. The provision which mandated consultation prior to the DHA issuing a corporate visa had been altered to include consultation with the Department of Trade and Industry prior to the issuance of such a visa. The document presented by the Department had been formulated for ease of reading and reference.

The Chairperson agreed with the Department and said that most of the issues raised by Ms Lovemore were in the Immigration Act and should not be rehashed. The Committee should confine itself to focusing on the Amendment Bill. The Committee would not reopen the Immigration Act and try to amend it.

Ms Lovemore said that the Committee had received enough submissions on the clause repealing of Section 46 of the Act which would scrap immigration practitioners, to warrant a re-look at the issue. She expressed her shock at the lack of awareness of the Minister of Tourism and two Directors General that the Committee was working on the Bill. This showed that those officials had clearly not been consulted. The Democratic Alliance wanted to see the Bill taken back and proper consultation carried out.

The Chairperson said that the information she had received was that the Bill had been discussed in Cabinet prior to it being brought before the Committee. The repeal of Section 46 had been discussed extensively and the Minister had presented her case as to why the Department wanted to see the section repealed. Every organisation and the public had been granted an opportunity to speak on the issue and those submissions had been taken in. There was no need to go backwards on the issue.

Mr M Mnqasela (DA) said that the Forum of Immigration Practitioners of South Africa (FIPSA) wanted to interact with the Committee. They had requested to do so in writing to the Chairperson and the Committee. The Committee should take into consideration FIPSA’s request and decide whether or not to engage with the organisation.    

Ms S Bothman (ANC) said that the Committee had heard from stakeholders and engaged with them. Both of the DA members had been present at those meetings. There needed to be acknowledgement that sometimes stakeholders raised issues and they were taken on and others were not, with good reason. The DA had commented that too much time was being taken up by the Bill. She said that the DA had said that they wanted the Committee to cooperate with them, failing which they would ‘walk out’ of proceedings. 

Mr Mnqasela raised a point of order and demanded that Ms Bothman retract her statement about the DA. The DA had never taken a stance of wanting to walk out of proceedings.

Ms Bothman responded that her statement ‘lucky enough wasn’t an insult, it was a comment therefore I’ll continue where I left off’. The Committee had considered the issues around the Bill for long enough and it needed to move forward and not back. The DA should offer remedies to the issues they raised, rather than be obstructionist.

Adv Gaum agreed with Ms Bothman and proposed that the Bill be voted on by the Committee. Other parties may object if they wished, but a vote must be conducted. 

Ms Lovemore said that what Ms Bothman had said was not merely a statement it had been a lie.

Adv Gaum raised a point of order and said that it was un-parliamentary for one member to accuse another of lying.

The Chairperson agreed and demanded a retraction from Ms Lovemore.

Ms Lovemore retracted the statement. The DA was not in the Committee to help the ANC but it was there to represent the needs and wishes of the people of South Africa and it took its role seriously. The Minister had presented the Committee with her views on the Immigration Amendment Bill but had overstepped the mark in telling the Committee what should go through in the Bill and Ms Lovemore had raised a point of order and stood by that. The Bill should not be taken as a fait accompli merely because the Department had presented it to the Committee. The Committee had questioned submissions by civil organisations but had not as yet held a deliberation meeting in which they went through the Bill on a clause by clause basis. She advised members to consult the Parliamentary Monitoring Group’s minutes on the Committee. 

Ms H Makhuba (IFP) expressed her disappointment with the tone of the discussion and the animosity that was becoming evident. She requested that members not point fingers at each other.

Ms P Maduna-Peterson (ANC) voiced her disappointment with the tone of the discussion. She agreed with Adv Gaum that the Committee should vote on the Bill on a clause by clause basis.

Ms D Mathebe (ANC) asked what the purpose of the Committee working on the Bill was if the DA was in the Committee merely to represent its own interests. That approach made no sense.

Mr Mnqasela said that the discussion had reached an unfortunate place which he had hoped would not come about. The Committee should deliberate on the Bill on a clause by clause basis. Voting on the Bill would not do justice to the legislation. He personally thought that sending the Bill back would not be useful or helpful.

Ms Bothman said that the Committee was coming to the recognition that the Bill could not be sent back as suggested by Ms Lovemore. She agreed that the Bill should be deliberated on clause by clause.

Adv Gaum said that the reason there were a number of alterations in the Bill was due to the excessive engagement involving stakeholders, opposition parties and the Committee. The Bill had gone through Cabinet and consultation had taken place and procedure had been followed. Ms Lovemore was alleging incorrectly that clause by clause deliberations on the Bill had not taken place. In previous meetings, contentious and outstanding issues had been addressed and opportunities had been given to the Committee to raise outstanding issues.

The Chairperson suggested that Ms Lovemore present her party’s submission.

Democratic Alliance Submission on the Immigration Amendment Bill
Ms Annette Lovemore presented the DA’s submission on the Immigration Amendment Bill. The DA was concerned with the lack of costing done for the Bill plus a regulatory impact assessment had not been done. The DA was not satisfied with the amount of consultation conducted prior to the drafting of the Bill.

Clause 2
The party proposed that a good explanation be provided for changing ‘permit’ to ‘visa’. It sought explanation on what the length of stay was for a visa versus that of a permit.

Clause 7
The party sought clarification on the time period granted to an applicant of a visa under this provision. In light of the scrapping of Section 46 of the Act, there must be better clarity on the length of stay granted to applicants. The term ‘temporary sojourn’ needed to be better clarified to avoid confusion on its interpretation. 

Clause 11
The party wanted the list for businesses considered to be undesirable, submitted to Parliament. The party wanted relatives accompanying people with business visas to be granted the opportunity to seek work in the country, particularly in cases where they possessed important skills which could assist the country. The party wanted the regulations which prescribed the number of South African citizens mandated for employment in foreign owned businesses submitted to Parliament.

Clause 12
The DA submitted that a discretionary clause must be included in this provision, allowing the Director-General to be approached with an application where a skill is not listed but is indeed a critical skill, and would benefit South Africa. There should be an explanation of the Department’s position with respect to exceptional skills permits or quota permits that expire.

Clause 21
The party wanted to remove screening for domestic conveyances going from one domestic location to another domestic destination.

Clause 24
The party submitted that the words “and/or comply” in Clause 24(10) should be inserted after “to contravene”; in cases where bribes were solicited by, or offered to, civil servants to have services lawfully rendered.

Discussion
Adv Gaum said that in a sense Ms Lovemore was trying to take the Bill and the Committee backwards to the consultation phase when the Bill and Committee had moved on to the next stage of consideration. The DA should have come up with a proposed amendments document similar to the Department’s which would state the amendments they would like to see.

Ms Bothman suggested that the Department be given an opportunity to respond to the issues raised prior to voting on the Bill. Voting could then be conducted at the next meeting of the Committee. 

Ms Lovemore said that the meeting was turning out to be a difficult one with lots of disagreement. Issues which had been raised and were outstanding had not been addressed and voting on the Bill should be postponed.

The Chairperson said that issues raised by the DA had been addressed by the Department. The Committee needed to move forward with a view to deliberating clause by clause on the Bill.

Ms Mathebe said that the Committee needed to move forward and as such needed a timeframe for when the work on this issue would be completed.

Ms Bothman said the Committee needed to deliberate the Bill clause by clause without taking backwards steps.

Mr Mnqasela fully supported Ms Bothman’s view and hoped that the rest of the Committee would be supportive.  

The Chairperson sought clarity on Ms Bothman’s proposal.

Ms Lovemore said that the Committee should have a picture of what the amended Act should look like. She asked that the Department take the DA submission into account in further drafting of the Bill.

The Chairperson asked how the suggestions in the DA submission document could be incorporated by the Department.

Ms Lovemore said that she hoped the Department would take the submission into consideration bearing in mind that the Bill was the Committee’s and not the Department’s. 

The Chairperson said that the DA submission was a party document and it could not be considered. Consideration had been taken of submissions by stakeholders and the Committee’s representations.

Mr Monwabisi Nguqu, State Law Adviser, agreed with the Chairperson and said that Clause 26 needed to be reinstated but refined to aptly address outstanding issues. The Bill should be voted on next week after that had been done.

The Chairperson said that the Bill would be voted on at the beginning of the following week’s meeting.

Adv Gaum said that the Committee should have a clear position going into the next meeting. The Committee had deliberated on the Bill extensively and the time had come to vote on the Bill in the next meeting.

The meeting was adjourned.