Immigration Bill: briefing by Minister

Home Affairs

18 March 2002
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
19 March 2002
IMMIGRATION BILL: BRIEFING BY MINISTER

Chairperson:
Mr Mokoena (ANC)

Documents handed out:

Briefing by Minister (see Appendix 1)
Revised Proposed Programme and Process for Treatment of Immigration Bill (see Appendix 2)

Relevant Documents:

Immigration Bill [B79-2001]

SUMMARY
There was consensus among all political parties that, in the wake of Mr Mokoena's appearance before the Parliamentary Rules Committee on March 13, the interrogation of the Bill would be handled on an expedited basis. This will include a series of meetings over the Easter recess starting April 15, with a debate scheduled in the National Assembly on May 2, in accordance with the revised programme for processing distributed by the Chair.

MINUTES
Minister Buthelezi read through his briefing document. He summarised the process which the Bill had followed up till now. He also explained that the Bill has been drafted to ensure that migration control has a minimal impact on the formulation of policies which are the prerogatives of other Departments. The Bill establishes a professional line function, which operates on the basis of simple and objective criteria which are limited to the issuance of permits for foreign workers, foreign tourists, foreign investors and foreign businessmen and visitors. The Bill ensures that foreign workers are employed within South Africa at the same terms and conditions applicable to South African nationals. However, he pointed out that it is not the purpose of migration to determine what such terms and conditions may be.

The Chairperson then noted that while there will be some tinkering with the Bill in the Committee, they are committed to processing the legislation expeditiously.

Discussion
Mr Grobler (DP) expressed his happiness at finally having reached the point of tackling the Bill, with the assistance of the Department and Ms Jacobus's Social Services Select Committee. He declared the DP's commitment to expeditious and thorough processing of this legislation.

Prince Zulu (IFP) applauded the Minister's briefing, especially in summarising the spirit of the legislation, which Members should keep in mind in, considering possible amendments, along with their financial implications. He noted the propitious timing of the Minister's visit on the day the revised processing programme had been distributed.

Mr Sikakane (ANC) noted that there was a queue of skilled people waiting to be processed under the new legislation, and asked how the functions of the Immigration Advisory Board affects the Minister's powers under the Bill.

In reply, the Minister referred to Clause 32 of the Bill, noting that the Board's role is, as its name suggests, solely advisory. The Chair also noted this point, referring to the enabling words concerning the Board in Clause 28 of the Bill.

Ms Vilakazi (ANC) commended the Minister's description of the Bill as providing for "brain train(ing)" to redress the "brain drain".

Mr Pretorius (NNP) stated that, with the Bill's creation of investigative units and immigration courts, and expansion of visa categories, his party had reservations" concerning the Department's administrative capacity, and the Bill's financial implications.

Minister Buthelezi reiterated the point that decentralisation of Departmental line functions to regional offices, with Pretoria playing a co-ordinating role, is a critical underlying assumption of the legislation.

Dr Oriani-Ambrosini, Special Advisor to the Minister, added that while there is a major initial cost to the Department in complying with Constitutional obligations in terms of court decisions, once the Bill is implemented the immigration courts will lead to cost savings. There will be a reduction in litigation, and less costly litigation than that conducted in the current judicial framework.

Mr Pretorius also raised cost issues related to the delegation of functions to municipalities under Clause 55 of the Bill.

A Department representative replied that such devolution of function is being directed by the Minister himself and its efficient implementation is an area of emphasis.

Ms Jacobus (ANC) thanked the Minister, noting that while a "robust debate" on the Bill could be expected, all parties are committed to transformation of the nation's immigration legislation.

The meeting was adjourned.

Appendix 1:
PORTFOLIO COMMITTEE ON HOME AFFAIRS

REMARKS BY MANGOSUTHU BUTHELEZI, MP MINISTER OF HOME AFFAIRS Cape Town: March 19, 2002


I wish to thank the Chairman of the Portfolio Committee for the opportunity offered to me and my Department to address this Committee on matters relating to the Immigration Bill. The process of bringing this Bill into reality has been a very long and often painful one and I am pleased that we are finally seeing its end. I am very heartened by the strong commitment publicly made by the Speaker and the Chairman of Committees indicating that the Immigration Bill will be passed by Parliament before the end of this present term.

The passing of the Immigration Bill will complete a long process which began with our first democratic elections of April 27,1994. Since then, this Parliament has overhauled each governmental line function and brought about a comprehensive reform in each field of legislation. The Aliens Control Act, apartheid's last Act, is the last vestige of our legislation which still reflects the mind sets, the policies and the orientations which were prevalent before April 27, 1994. Therefore, at the outset I wish to congratulate members of this Committee for being those who closed the chapter on our past by introducing into the new South Africa the last of those measures in the package of major legislative and administrative reforms which were necessary to make the spirit of our democratic Constitution a living reality in all fields of legislation and administration.

The Immigration Bill before you was first published on February 15, 2000, even though I circulated preliminary copies of the first rough drafts of this Bill to this Committee when I met with you in October 1999. The framework of the Bill before you is not that dissimilar from the one which was published and distributed then, except that the notion of migration control being embodied in a distinct statutory body known as the Immigration Service has been expunged on the basis of Cabinet resolutions.

In addition, the version tabled before Cabinet has received the benefit of hundreds of amendments and refinements which took place in an extremely long process of public consultation which included a 90 day period of public comments, extensive interdepartmental consultation and an extremely labourious Cabinet process inclusive of extensive interdepartmental and inter-ministerial scrutiny and a full day Cabinet workshop. The Bill was also extensively considered and negotiated in Nedlac and many of the amendments made before its submission to Cabinet and during Cabinet deliberations were the direct product of the negotiations which took place in Nedlac.

Furthermore, as many of you who attended will remember, the formulation of the Bill received the benefit of an international consultative conference held in July 2000. Between July and August 2000 the Bill served in Cabinet where it received about 80 amendments and refinements. It was then left in abeyance requiring further reflection and it was again deliberated on by Cabinet at the beginning of this year and over two months leading to its final tabling in Parliament. Throughout this process, the Bill received extensive public debate and scrutiny. In fact, in order to enhance transparency and public participation, I instructed that each version of the Bill being debated in Cabinet be published on our web site. The Bill was formally tabled in your Portfolio Committee in June 2001 and formally introduced in your Committee on August 23, being then reintroduced with one single amendment on October 21.

I understand that during the past three months this Committee has read the Bill with great attention and in great detail, which absolves me from having to discuss the actual content of the Bill, which is now well known to all of you. This also enables me to present to this Committee a broader policy perspective on the Bill. Before focussing on the details of the Bill it may be necessary to clarify the new type of relationship between the function of migration control and other line functions it establishes, and related aspects of their policy formulation.

Migration control relates to the determinations of the conditions under which foreigners may enter and sojourn in the Republic, either temporarily or permanently, or may become citizens. Only partially, does it set forth the conditions of what foreigners may or may not do within the Republic, as marginal exceptions to the general policies set out by other departments. For instance, migration control may set the policy that foreigners may not work in the Republic unless specifically authorised. when in the Republic, foreigners will conduct activities of work, tourism, education, business, investment and medical treatment. However, it is not the function of migration control to develop any policies in labour matters, education, tourism and trade and industry.

The Bill has been drafted to ensure that migration control has but a minimal impact on the formulation of policies which are the prerogatives of other departments. In the past, especially during the apartheid era, a strong and highly discretionary Department of Home Affairs had wide ranging powers and latitude to formulate significant aspects of tourism, labour, and investment policies through the exercise of its migration functions. The Bill establishes a professional line function which operates on the basis of simple and objective criteria which are limited to the issuance of permits for foreign workers, foreign tourists, foreign investors and foreign businessmen and visitors.

The Bill ensures that foreign workers are employed within South Africa at the same terms and conditions applicable to our nationals. However, it is not the purpose of migration to determine what such terms and conditions may be. The Bill seeks to reach beneath the level at which policy formulation takes place in respect of matters which may be impacted by the presence of foreigners within South Africa. Obviously a perfect separation is not possible. For instance, provision is made that student visas be made available for foreigners who are enrolled in institutions of learning within the Republic. However, the criteria for their admission in public institutions of learning will need to be determined by the Department of Education, which will establish whether foreign students should have the same access as our nationals, or a quota should be reserved for them.

This decision will be made within the management of the educational resources of our country. However, the migration function may assist in recovering the value of public subsidies in the education of each foreign student if the Department of Education chooses to pursue this policy option. Therefore, the Bill makes provision for this eventuality. The same applies in respect of medical treatment in public facilities thereby registering that South Africa is becoming an increasingly more attractive destination for foreigners seeking hospital services.

Having sketched what the function of migration control is not, one needs to focus on what migration control is all about. The main tasks of migration control are threefold. First is the issuance of permanent and temporary residence permits to foreigners who qualify for them. Second, is the detection and removal of foreigners who are illegally within the Republic. Incidental to this latter function are the tasks of deterring the phenomenon of illegal immigration, investigating its general causes as well as specific cases. Thirdly, migration must deal with undesirable social phenomena associated with the presence of foreigners in the country, amongst which is the prevention and redress of xenophobia. Additional social problems to be dealt with relate to the cultural adjustment of foreigners and interim services they may require in the process of their relocation.

These three tasks are provided for in the Bill. In the past, the great majority of resources and administrative attention of migration control has been focussed on the first task, namely the processing of permits in respect of those foreigners who are within the system. Little resources have been available for the second task and illegal foreigners have been dealt with only when identified as a consequence of their breaching their conditions of permit or as an incident of their arrest by the police. Little capacity existed for actual law enforcement, especially in respect of the large number of illegal foreigners who never become part of the system because they cross into South Africa at places other than points of entry and never become registered within the system through which permits are issued.

Finally, no specific capacity or resources have been employed in respect of the third task, which is that of dealing with the social problems associated with illegal aliens, of which xenophobia is only one. Therefore, the Bill requires that the nature of migration control must change and assume different tasks. To this end, it takes cognisance that migration control is presently underfunded and is likely to remain underfunded in the future. Throughout the world, it is noted that scarce budgetary resources are allocated to migration control. Therefore, the implementation of the Bill will cause a more rational allocation of available resources amongst the aforesaid tasks.

The Bill also seeks to apply the principle of service delivery within the field of migration, identifying three classes of recipients of its services, namely the foreigners to whom permits must be issued, the nationals who wish permits to be issued to such foreigners, such as their employers, family members, business associates or tourist establishments, and, as a third category, the public at large which benefits from the presence of foreigners within the country and wishes to regulate the presence of illegal foreigners. Therefore, the role of migration is to issue permits as quickly, efficiently and objectively as possible and deal with those who do not respect the conditions of permits.

Accordingly, a new migration function will simplify the issuance of permits based on objective and simple criteria. The notion is that of having an objective system of permit issuance which can be administered without the need for time-consuming discretional assessments and consultations with other organs of the State or entities, and can be performed by the officials concerned without a high degree of specialisation and training. We are aiming at developing a system in which the officials can review an application from the viewpoint of completeness, and issue a permit on the basis of the documentation on their file. Simply put, the official will need to check whether all the documents required by law and regulations are part of the application, and whether their contents fit that set forth in standard forms.

Therefore, the application review process will be fast, objective and predictable, thereby achieving the sought after improvement of service delivery. Moreover, this approach will free administrative capacity presently locked into the processing of permit applications. This additional capacity will be employed for the other two tasks of migration control. This approach also sets the backdrop for an important reform of migration control contemplated in the Bill. Having simplified permit procedures, it becomes possible to organise migration control in a more decentralised fashion. This is. essential to enable migration control to cope with the increasing demands of the future.

The economic and social success of South Africa will reverberate dramatically on migration control in terms of multiplied work permit applications, massive influx of tourists and businessmen and demands from people seeking to settle in South Africa permanently. This additional work could not be processed within the present structures. Therefore, the migration function will primarily be exercised by regional offices. The head office in Pretoria will be the centre where the activities of regional offices will be coordinated, training will take place and polices will be developed. At present a great deal of head office capacity is employed in the processing of permits. In the future, head office will not be processing permits, but will review how permits are processed, develop the relevant policies and manage the entire system of migration.

Similarly, enforcement activities will take place at the regional level and will be equally coordinated from a viewpoint of management, training and supervision from the head office. Regional offices will be both within the Republic and abroad. Within their context, it will be possible to issue permits in foreign regional offices such as those presently located in London and Berlin. Once the system functions properly, and is effectively managed and supervised, it will also become feasible to remove some of the administrative measures which were put in place to address present administrative shortfalls, such as the requirement that permit applications be lodged from outside the country and their applicants remain abroad waiting for the outcome of their application. The Bill makes it possible to adjust status from within the Republic, which means that a foreigner who is legally within the Republic may apply for a different permit. A tourist may, for instance, apply for a work permit.

The decentralisation at regional level also serves the purpose of ensuring greater accountability of those who effectively make decisions on single cases, so that they may be required to answer for them if they are erroneous and they become the immediate respondents of both administrative and legal challenges brought against their decisions. This applies both to the issuance of permits as well as action taken in pursuance of law enforcement, such as deportations. The Bill places a new emphasis on the task of enforcing immigration laws. The Bill espouses the notion of having immigration officers working within communities, moving capacity out of offices and away from paper work to place it at grassroots level. We need to visualise the future of migration and the presence of foreigners within South Africa within a 21st century characterised by an enormous ease of movement of people between countries and large circulations of foreigners for purposes which one can no longer classify on the basis of rigid categories.

A country such as South Africa will attract a large number of foreigners who will often be within the Republic for mixed purposes, such as tourism and business, or tourism and research, or sabbaticals, or just to rest as pensioners. The future will see an increase in the number of foreigners within communities, which will become increasingly more cosmopolitan. With this reality in mind, the Bill focuses not so much on the foreigners themselves, but rather on their activities within the Republic. The focus of law enforcement is moved away from the foreigners and their physical presence in our country, and is placed on their activities.

Therefore, it is not the presence of foreigners per se which will ever form the object of investigation and law enforcement by migration, because it would be impossible to operate on that basis. There is no issue of stopping people who are suspected to be foreigners in the street. It may happen on occasion and, surely, migration must have the power to do so, because it is necessary to the exercise of its functions where the real focus is placed. But the future of law enforcement places the focus of enforcement elsewhere. The activities of foreigners are monitored where it counts, namely in workplaces, learning institutions and at the interface between government and its citizenry.

Also, in terms of the Bill our Department will need to ensure that, in a climate where the presence of foreigners in South Africa will be less regulated, the activities of foreigners can be adequately regulated and the regulations enforced. Therefore, migration needs to develop the capacity to routinely inspect workplaces as well as communities. In doing so, it may request communities to cooperate with its activities as much as any other law enforcement agency would require the public to provide information. These efforts are balanced by the separate task which the Bill requires migration to undertake, which is that of educating the public and preventing any instance of xenophobia.

Another important aspect of the new system of migration control is the need to acknowledge that South Africa is moving towards a human rights culture shaped by one of the most democratic constitutions in the world, which applies equally to nationals and foreigners within the Republic. One of the main transformations of migration in the future is centred around the requirement of motivating the decisions taken and providing a full opportunity for judicial review, during which the rights and the liberty of those affected, especially foreigners, are respected, on the basis of a judicialised process which, inter alia, relies on court warrants.

This is an enormous transformation from the present situation and puts migration control in a completely new dimension which requires an enormous amount of additional resources. Simply put, compliance with the requirements of advanced human rights protection requires greater capacity, more resources and more training. It would be almost impossible and hardly conceivable for this process to take place through a general system of courts.

For this reason, the Bill proposes the establishment of Immigration Courts which, only for descriptive purposes, one might wish to equate with traffic courts, insofar as immigration officials will be specially trained to appear and present their cases, thereby minimising the need for prosecution. Judges will be specialised, and one would expect cases to be heard in a fast and routine fashion, while providing the full measure of competent judicial attention. These courts, operating at the Magistrate's Court level could indeed be Magistrate's Courts, operating on certain days of the week and provided that the relevant magistrate has undertaken a qualifying programme of training.

I must stress that in terms of the Bill the Minister of Justice has the total discretion on whether, when and how to establish such courts, including the possibility of a geographically staggered and phased-in approach. Therefore, the Bill's provision for Immigration Courts is a purely enabling provision which will be implemented when and how the Minister of Justice sees fit. As separate courts, Immigration Courts do not duplicate the required judicial and administrative capacity which, in the final analysis is dictated by the number of cases to be heard, court room space required, and work hours on the side of judges and prosecutors. These factors remain constant and are not duplicated, while specialisation reduces the extent to which these factors come into the equation.

The final aspect of law enforcement and migration relates to border control. In the Bill there is no suggestion that border control should in any way be lessened. On the contrary, the Bill calls for the tightening of border control by means of specialised and professional activities under the control of the Department of Home Affairs but conducted on an interdepartmental basis and drawing from the resources and contributions of all relevant line functions. This will finally create the long sought after coordination of the many line functions which directly or indirectly carry out responsibilities in respect of border control or at the points of entry, thereby obviating some of the problems which members of this Committee observed during a recent visit to points of entry and reported to Parliament. Nonetheless, it must be restated that more efficient and better coordinated border control by itself cannot be the only solution to the problem of illegal foreigners in the country and that, by itself it will remain ineffective. However, it cannot be neglected.

Border control must dramatically change. Nowadays, borders are no longer controlled to repel an invading army, and the main concern of border control is about preventing cross-border illegal activities, ensuring the payment of tariff duties on entering goods, and regulating the access of foreigners for purposes of migration control. These are not functions which can be performed by the defence forces, nor do they require the full range of investigative and policing capacity of the police service, which are the two security services presently mandated to perform border control. Therefore, future border control will need to rely on specialised investigative capacity which justifies the policies set out in the Bill.

One of the more widely debated issues of migration control relates to work permits. In this respect, two relevant policy considerations have emerged in the debate. The first is that which suggests that government should not make work permits too readily available, for fear that the easy availability of skilled and qualified foreign labour may reduce the momentum and necessity in respect of the training of nationals, especially as far as our industry as a whole is concerned.

The other relevant policy consideration centres around the need to provide our economy with the skills and qualifications it needs to grow. This consideration registers the fact that all countries are competing for skilled people. For instance, Germany has launched a programme to acquire tens of thousands of foreign computer experts who will be allowed to work in that country in an environment in which conditions for work permits and permanent residence have been greatly relaxed. Therefore, in this context, South Africa competes with some of the most advanced countries, without being able to provide many of the benefits such countries offer, which may require our making it even easier for foreigners to receive work permits.

A further consideration is that of compensating the brain drain to which South Africa is subject with a brain gain, so as to enrich South Africa's human resource pool. when considering these issues we were faced with a broad variety of options relating to these considerations, and had to engage in a broad analysis of comparative experiences, the several aspects of which could obviously not be set out extensively in the few pages in which our policy documentation had to be contained. In the end, the White Paper on International Migration approved by Cabinet on March 31,1999 created a necessary tie between work permits and the training of our nationals through the establishment of a permit fee intended to be applied towards the training of our nationals. This approach has been maintained in the Bill.

In order to fully understand the value of this innovative proposal, one may need to consider its alternatives. The key question that one needs to ask is how one identifies the type of foreigners which South Africa as a whole may like, need, or prefer to have working in South Africa. The Bill develops new and innovative solutions to foster economic growth and satisfy the needs that our businesses may have for the acquisition of foreign human capital and skills. From a business viewpoint, there are two major facets to the relevance of migration control. The first relates to the acquisition of foreign workers within an established business in South Africa. The second relates to the establishment of a foreign business in South Africa, and includes intra-company transfers, key personnel and investor's permits. The difficulty is that, in reality, these two categories are on a continuum which blurs the differentiating lines.

Similarly, foreigners may come to South Africa to either work or conduct business, and while there may be clarity at the two extremes of this spectrum of employees and businessmen, there are many grey areas in between. The most difficult aspect of reducing the simple reality of people coming from abroad to conduct productive activities in South Africa into legal classifications and differentiations was raised by the issue of skills. It took three years since 1995, when the public debate on international migration first began, to bring about policy consensus that we need to open up the country to the skills our economy needs, as stated by the President during his State of the Nation address last year.

Years ago there were some voices suggesting that we should avoid satisfying our country's need for additional skills by resorting to foreigners, so as to avoid reducing the incentive that our employers should have to train South Africans. The emphasis was exclusively on brain train rather than brain gain. It was then realised that a country grows also because of the human capital it is able to import, and the white Paper developed a mechanism to maintain a policy connection between brain train and brain gain. However, stating that we need to let into the country the skilled people we need is easy to make from a policy viewpoint, but difficult to implement in practice. Someone somehow needs to determine who is skilled, what skills we need and whether such skills are indeed needed.

There was a strong temptation that government should do exactly that; that we should classify all the possible skills into various groups or categories and determine how many of each group we need at any given time and for each sector of industry. Those who wish to employ foreigners would need to apply against such skills and needs auditing. This system would leave unsolved the issue of whether a foreigner is actually needed in a specific industry, even when his skills belong to a category for which the generic need was assessed.

Therefore, it was suggested that each application be accompanied by a labour certification which showed that no South African was ready, willing and able to take the position being offered after such position had been duly advertised. This mechanism would only prove that the need for such foreigner existed at the time of his employment and, therefore, it would become reasonable that this labour certification be repeated when the work permit requires extension, and that such work permit be issued for a short period of time.

This is the skills auditing system against which work permits would be issued. This possible alternative gives the full measure of the difficulties the White Paper sought to overcome in developing something better. Such system would have been even more complex, discretionary, uncertain and time and effort consuming than the one presently in use in terms of the Aliens Control Act. It would have required a huge government bureaucracy to be implemented. Each business would have been required to list the skills it presently has and those which it expects to need in the future. This sophisticated guess work would then be assessed through a process of policy review which would have balanced the needs expressed by the industry with the interests of the State not to fulfil such needs, so that the training of South Africans could be promoted. Such system could not work in our present context, and with the present and future needs of our economy.

The fact is that, in the real world we live in, it is impossible to classify skills and match them with qualifications. Government can only read skills through qualifications and determine that if someone has an engineering degree, he has the skills of an engineer.

We are ill-equipped to assess experience, training and curricula vitae. In the present market place, qualifications no longer match skills and skills no longer match positions. Engineers may make good managers. Moreover, the link between skills and qualifications has been irreparably broken. For instance, South Africa desperately needs computer specialists such as web designers, web site managers and developers and programmers, most of whom have precious skills reflected in no documentable qualification such as a certificate or diploma.

In the end, the employer is best qualified to determine whether an employee has the skills and qualifications required to perform certain tasks. Obviously this statement rescinds from the need of ensuring that those performing any given task have qualifications which are certified by our Qualification Authority as valid to perform such task, as in the case of medical doctors or engineers. The legal requirements relating to the exercise of any given activity or profession remain unaltered.

A final problem when dealing with skills is how to determine how much skill a person needs to have to be the type of person we need in our country. There might be agreement that a brain surgeon is sufficiently skilled, and yet we need people who can operate a certain type of water pump or tractor. Conversely, we may not need trained astronauts, as we have no space programme. There are strong segments of industry which also suggest that we need entrepreneurial skills and this seems to be supported by the large number of successful small and micro businesses commenced in our country by foreigners, many of whom are not legal yet may be providing an appreciable contribution in macroeconomic terms. Government cannot determine how much skill is enough to cross the threshold of needed skills.

The new system of migration control envisaged in the Immigration Bill will rely on employers to determine whether any given foreigner is required for their business. Having crossed such important policy threshold, it became imperative that we maintain a connection with and satisfy two other important and possibly conflicting policies. The first is that of ensuring that government maintains control of the process. Relying exclusively on an employer's statement that the foreigner is needed does not satisfy such a requirement, nor can government be expected to conduct an investigation in respect of the accuracy of each statement so rendered, which would lead us back to cumbersome, discretionary and lengthy procedures. The second policy consideration has always been that of maintaining a connection between the employment of foreigners and the training of our South Africans.

For this reason, we developed the mechanism of a licensing fee for foreigners as the only mechanism required to determine whether a foreigner has skills which are indeed needed in any given business. The notion is that if someone is willing to pay a higher premium to employ a foreigner than he would to employ a South African, then that foreigner is needed. This mechanism also avoids having to determine the length for which a permit should be issued, because obviously a person is needed for as long as one is willing to pay such premium. If at any given time South Africans become available to fill the position, it would stand to reason that an employer would shift to using them. Moreover, this system maintains a policy tie between brain gain and brain train which is entrenched in our debate. In fact, it is understood that this licensing fee will be directed to the training fund already established by the Department of Labour to train South Africans.

From a practical viewpoint, an employer will only need to pay this periodic licensing fee, which is an additional return, and certify that a foreigner works at terms and conditions which are not inferior to those applicable to a South African. This latter certification can be conducted on a routine basis by the employer's accountant, indicating that the foreigner is not paid less than a South African in the same workplace or in a comparable one. When we introduced this system, the business community raised a number of concerns to which I have been sensitive and which led to additional corrections being made and guarantees put in place. In the end, there have been many exceptions to a licensing fee.

Just to mention a few of such exceptions, one may point out that the licensing fee will not apply in respect of corporate permits, which are those permits which can be negotiated by any large company or organisation directly with the Department enabling them to issue a certain pre-agreed number of permits directly from their human resources offices. This is a unique system which will add enormous flexibility to satisfying the needs of South African industry and foreign investors alike. This system also enables a corporate permit holder to shift work permits between different foreigners without having to receive approval from the Department. Obviously work permits can only be issued once the Department has certified that each application meets all the relevant requirements, including police clearance and other additional information which is part of the constituting elements which our regulations will prescribe for any and all applications.

The licensing fee will also not apply to intra-company transfers, work permits for people of exceptional skills and qualifications, in respect of people with certain skills within a class which government may determine from time to time and in respect of the renewal of existing permits. It will also not apply either in respect of foreign investments or entire segments of industry when so requested by the Departments of Trade and Industry or Minerals and Energy. The latter case is intended to address marginal and highly labour intensive industry which may be relying on foreign labour for their survival, such as certain segments of our mining industry. Many of these exceptions were the result of negotiations held in Nedlac with social partners.

Finally, a last important aspect of the new system of migration control to be mentioned is the involvement of stakeholders in the actual definition of the details of the system. The actual features of the system will, to a great extent, depend on the regulations. For instance, it will be the regulations which will determine the amount of the licensing fee and obviously it will make a difference whether such licensing fee is higher or lower, or is uniform across the board rather than being differentiated for each category of industry, possibly across the divides of the Sectoral Education and Training Authorities. Similarly, the entire system of investors permits will vary substantially on the amount of prescribed investment which qualifies for an investors permit.

The Bill has made provision for these critical decisions to be made by an Immigration Board in which both government and stakeholders of civil society would be represented.

In terms of the Bill, Government would have control of such a Board, but the inputs of civil society within it would have been powerful. In the original version of the Bill, the Board had an executive function. However, during the process of review of the Bill by Cabinet it was then decided that these critical decisions need to remain within the prerogative of the Minister and that the Immigration Board, rather than having a decision making power, would only serve in an advisory capacity. However, the Bill preserves the guarantee that the regulations can be stricken down by a court of law when they are found to be arbitrary and capricious in respect of the inputs received from the public and stakeholders, which will give great weight to the recommendations of the Board.

The Board is a crucial element in the structure of the Bill. Migration control is a function which relies heavily on interdepartmental coordination and calls for a continuing process of policy formulation. The needs of the country change and so do our perceptions, and from time to time it is necessary to determine how ajar the migration door should be kept. These types of decisions cannot be entrenched once and forever in the law and will take place through regulations. However, these regulations require extensive interdepartmental inputs and therefore, must be the product of a body which causes various departments to work together. By including a large number of representatives of civil society the Board will also ensure that policy formulation continues to receive the necessary inputs of all stakeholders and role players.

The President expressed the hope that Parliament could process the Immigration Bill before the end of last year, and his hope was reflected in last year's parliamentary calendar. I now hope that this Bill can leave Parliament and the reform of migration control can finally be launched. It must be appreciated by this Committee that the adoption of new legislation will be but the beginning of a lengthy process through which the reform of migration control will finally take place. We will need to change our regulations, adjust our application forms and other documentation, restructure our Department and conduct extensive programmes of retraining. This will take time and massive efforts. Therefore, the sooner we get our green light and the necessary mandate from the new legislation, the sooner we will be in a position to provide the much sought after and much waited for improvement of our migration control services.

We need this Bill to be passed to begin performing better which, in the end, is the fundamental task which should unite our respective efforts.


Appendix 2:
From: Chairperson of Home Affairs Portfolio Committee, Aubrey Mokoena (ANC)
To: Chairperson of Committees, MJ Mahlangu (MP)

18 March 2002

Re: Processing of the Immigration Bill

Dear Honourable Mahlangu

I am pleased to submit to you a programme for the processing of the Immigration Bill. This is a sequel to the Draft Programme, which was submitted to the National Assembly Rules Committee on 13 March 2002.

Hereunder is a programme adopted by the Portfolio Committee of Home Affairs at its meeting on 18/03/02 at v475


Briefing by the Minister of Home Affairs, Dr. MG Buthelezi, and by the Special Advisor to the Minister, Dr. M Oriani-Ambrosini:
Date: 19 March 2002
Time: 14h00 - 16h00
Venue:

Briefing by the Deputy Minister, Mr C Nqakula:

Date: 15 April 2002
Time: 11h00 - 13h00
Venue

Briefing by the Department:

Date: 15 April 2002
Time: 14h00 - 16h00
SARS (South African Revenue Services) on Customs and Excise at border posts

Date: 16 April 2002
Time: 10h00 - 13h00
Venue:

SALGA (South African Local Government Association)

Date: 16 April 2002
Time: 14h00 - 15h30
Venue:

Nedlac (National Economic Development and Labour
Council)

Date: 16 April 2002
Time: 16h00 - 18h00
Venue:

Business
Business South Africa
CDE (The Centre for Development and Enterprise)
British Chamber of Business in Southern Africa
American Chamber of Commerce
Nafcoc
Fabcos

Date: 17 April 2002
Time: 10h00 - 16h00
Venue:

Trade Unions:
Cosatu
Fedusa
Nactu

Date: 18 April 2002
Time: 10h00 - 16h00
Venue:

Briefing by Portfolio Committee Chairpersons on relevant Clauses of Immigration Bill:

Chairperson of PC on Safety and Security
Chairperson of the PC on Defence
Chairperson of PC on Justice
Chairperson of PC on Finance (budgetary implications of Bill)
Chairperson of the PC on Trade and Industry
Chairperson of the PC on Foreign Affairs
Chairperson of the PC on Education
Chairperson of the PC on Labour
Chairperson of the PC on Public Service and Administration
Chairperson of the Joint Standing Committee on Intelligence (overview)

Date: 22 April 2002
Time: 10h00 - 16h00
Venue:

Non- Governmental Organisations: Approach Sangoco (South African NGO Coalition)

Date: 23 April 2002
Time: 10h00 - 13h00
Venue:

Academia
Date: 23 April 2002
Time: 14h00 - 16h00
Venue:

South African Human Rights Commission

Date: 23 April 2002
Time: 16h00 - 18h00
Venue:

Input by PC on Home Affairs on experiences and insight
gained on the SADC study tour

Date: 24 April 2002
Time: 10h00 - 13h00
Venue:

Consolidations of inputs (By Chairperson and Committee
Secretary

Date: 24 April 2002 - 26 April 2002
Time: 10h00 - 16h00
Venue:

Inputs by parties: Direct involvement of PC on Home Affairs

Date: 29 April 2002
Time: 10h00 - 16h00
Venue:

Finalisation and Vote on the Bill by the PC on Home Affairs

Date: 30 April 2002
Time: 10h00 - 16h00
Venue:

Debate and Vote in the National Assembly

Caucus: 10h00 - 12h00

Date: 02 May 2002
Time: 14h00 - 18h00

Finalisation and Vote by NCOP Select Committee
Date: 03 May 2002

Presidential Assent

Gazetting


I hope that you find this Programme in order.

Yours faithfully
___________________________
Aubrey Mokoena
Chairperson: PC on Home Affairs


cc: The Speaker of the NA Dr. F Ginwala
The Deputy Speaker of the NA Ms Mbete
Minister of Home Affairs: Dr. MG Buthelezi
Deputy Minister of Home Affairs: Mr C Nqakula
Director General of Home Affairs: Mr BL Masetlha
Chief Whips of All Political Parties
Members of the PC on Home Affairs

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