Immigration Amendment Bill: Deputy Minister and Department of Home Affairs briefing to NCOP

Meeting report

The Chairperson welcomed Members and the Hon. Ms Fatima Chohan, Deputy Minister of Home Affairs, and the delegation from the Department. The purpose of the meeting was for the Department to brief the Committee on proposed changes to the Immigration Act 2002 (Act No.13 of 2002 (the Act).

The Chairperson reminded the Department about a case the Committee had reported to the Department, concerning an elderly woman who tried unsuccessfully on several occasions to secure a South African identity document for the purposes of accessing social services. 

The Deputy Minister responded that the Department would try to assist her, but that there was no reference number for the case.  She asked the Chairperson to provide a contact number for the aggrieved citizen, which the Chairperson undertook to do.

The Deputy Minister said that she was standing in for the Minister who was in Pretoria for a series of meetings.  She noted that she would need to speak to the Minister before any of the proposed amendments could be formally approved.

Department of Home Affairs presentation
Advocate Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, gave a presentation to the Committee.  South Africa was part of a global village, and this necessitated the management of people’s movements into, and within, the country.  There were several problems with The Immigration Act in its current form, and the Bill attempted to remedy those shortcomings.   The Act had to be amended because currently it provided for changes in the status and conditions attached to the permits granted to foreign nationals, and that system was being abused.  In some cases, foreign nationals entered South Africa as tourists, and stayed in the country indefinitely.  In the Department’s experience, the use of the term “permit” had created a perception that certain types of temporary residence permits were of a superior status to a visa.  In other countries, permits were normally granted for longer stays while visas were granted for short stays.  Changing the terminology used by the Act would help to bring the legislation in line with international best practice.  Further, there were no provisions in the Act enabling the Department to effectively combat child and human trafficking.  The provisions in the Act relating to offences were not serving as an effective deterrent, and there was poor management of the risks associated with the adequate screening of foreign nationals seeking to enter South Africa.  The Portfolio Committee on Home Affairs had decided that the Bill should provide that all temporary residence permits be called “visas”, in order to convey the fact that they were granted for shorter stays, whereas references to “permits” should only be made in relation to permanent residence permits.
The main objectives of the Bill were to:
- delete certain wording in the Preamble;
- substitute, insert or delete certain definitions;
- provide for designated ports of entry;
- revise provisions relating to the Immigration Advisory Board;
- revise provisions relating to the making of regulations;
- revise provisions relating to visas for temporary sojourn in the Republic and related procedures;
- provide for the mandatory transmission and use of information on Advanced Passenger Processing (APP);
- provide for the transmission of passenger name record information;
- revise provisions relating to permanent residence;
- revise penal provisions, thereby increasing penalties for transgressions; and
- repeal provisions relating to immigration practitioners.

Mr Erasmus went through the proposed changes clause by clause for the benefit of the Committee.  All references to “temporary residence permits” in the Act should be changed to “visas”.  New and revised definitions would include “Advanced Passenger Processing”, “Passenger name record” and “Immigration Officer”, amongst others. “Marriage” in the Act would be redefined in order to accurately reflect all South African marriage legislation, including the Civil Union Act 17 of 2006.  The Portfolio Committee recommended that the term “visa” be changed to “port of entry visa”.

Section 4(2) of the Act listed the Government Departments that constituted the Immigration Advisory Board, and would be amended to provide to allow the Minister to select those Departments or organs of state that the Minister considered to be relevant to sit on the Advisory Board.  Section 7 of the Act would be amended to make provision for the charging of fees for advanced passenger processing and passenger name record transmission.

Section 9 of the Act currently provided that no person may enter Republic without a valid passport, but that children under the age of 16 would be permitted to do so as long as they were accompanied by a parent whose passport contained the child’s name.  The amendment would require that children under the age of 16 possessed their own passports.

Section 9A would be inserted into the Act to empower the Minister to designate any place complying with the prescribed requirements as a port of entry or exit.  The Minister would also be empowered to remove any such designation.

Section 10 of the Act would be amended in order to revise provisions relating to visas and temporary sojourn in the Republic.  A person would be prohibited from changing the conditions or status attached to his permit or visa whilst in the Republic.  The Portfolio Committee had amended the provision further to specify that an application for change of status attached to a visitor’s or medical treatment visa could only be made in the Republic in exceptional circumstances, yet to be prescribed by the Minister in the regulations.

The Act referred to “visitor’s”, “study”, “treaty”, “business”, “crew”, “medical treatment”, “retirement” and “exchange” permits.  In terms of the Bill, all of those “permits” would be referred to as “visas” instead.  The Portfolio Committee had further recommended that all “temporary residence permits” be termed “temporary residence visas”. Section 13 of the Act would be amended to make provision for the issuing of a study visa for the duration of the entire study period, thereby making it easier for people to study in South Africa.

Section 15 of the Act, governing business visas, did not prescribe the type of business that a foreign national could establish or invest in.  The amendment would make provision for the issuing of a business visa to a foreign national intending to engage in business “prescribed to be in the national interest”.  The Portfolio Committee further amended the Section to provide that no business visa may be issued or renewed if it related to a business listed as “undesirable” by the Minister, after consultation with the Minister of Trade and Industry.  The holder of a business visa would be required to employ a prescribed number of South African citizens, in order to encourage skills transfer within the country. 

Section 19 of the Act, which made provision for the issuing of a quota work permit, would be repealed and replaced by a “critical skills work visa”.  Section 19(3) would be deleted, and the requirements for the issuing of a general work visa would be prescribed in the regulations.  The requirements for the issuing of an intra-company transfer work visa would also be governed by the regulations.

Section 21 of the Act did not determine the sectors that qualified to be issued with a corporate permit.  The amendment would make provision for the issuing of a corporate visa to a corporate applicant who conducted business in those sectors that were published in the Government Gazette.  The Portfolio Committee amended the provision further to provide that no corporate visa may be issued to a business listed as undesirable by the Minister, after consultation with the Minister of Trade and Industry.  The Section would provide that a person employed in terms of a corporate visa should not work for anyone besides the holder of that corporate visa.  Section 22(b) would be deleted, and the Portfolio Committee had amended Section 22 to provide that no exchange visa may be granted if the offer to conduct work pertained to undesirable work as published by the Minister in the Gazette, after consultation with the Minister of Trade and Industry.

Section 23(1), which provided for the issuing of an asylum transit permit, which was valid for 14 days, would be amended to reduce the validity period to five days, during which people would be expected to report to the nearest Refugee Reception Centre. The Portfolio Committee amended the provision to provide that an asylum seeker visa shall be issued subject to a prescribed procedure, in order to ensure that fugitives from justice would not be admitted into the Republic.  Section 24, which provided for the issuing of a cross-border and transit permit to specified foreign nationals, would be repealed on grounds of the security risks that arose from the provision that holders of such permits were not required to report to an immigration officer. 

Sections 26 and 27, which did not prescribe the requirements for the issuing of a permanent residence permit, would be amended to make provision for such requirements to be prescribed in the regulations.  Section 27(c) would be amended to require that a business established by a foreigner should be one that was “prescribed to be in the national interest”.

Section 29(1) did not include the crimes of human smuggling and trafficking in persons as part of the list of crimes that may result in a person being listed as a prohibited person.  In terms of the amendment, those crimes would be inserted. Section 30 would be amended to provide that persons who overstayed in the Republic for a prescribed number of times would be listed as “undesirable”.  Currently, such persons were fined a prescribed amount, but in the Department’s experience, such fines were not serving as a strong enough deterrent.  It was envisaged that under certain circumstances, yet to be prescribed, such a restriction could later be lifted.  Section 49 would be amended to increase penalties and provide for imprisonment without the option of a fine in certain cases, such as corruption involving public servants.  The Portfolio Committee had reduced the penalties contained in the proposed amendments.

Section 35 would be amended to require owners of, or persons in charge of, conveyances to comply with advance passenger processing and submit passenger name record information.  Section 50 of the Act, which made provision for administrative fines, would be amended to provide that persons who overstayed would be dealt with in terms of Section 30, relating to undesirable persons.   Administrative fines would also be imposed for non-compliance with the provisions relating to advance passenger processing.  The amount of such fines would be prescribed in the regulations.
The Chairperson thanked the team from the Department of Home Affairs for the substantive presentation, and handed over to the Committee to ask questions.

Discussion
Ms B Mncube (Gauteng, ANC) welcomed the presentation and asked how soon the amendments would be applicable and when the regulations would be prescribed.  She wanted to know whether the Department had a strategy for advocating and capacitating Department officials.  She said that the naturalisation process was not very well understood in local communities, and that even officials at the Department of Home Affairs seemed unsure of what it entailed.

The Chairperson asked which category foreign nationals who moved into locations and villages to run businesses as hawkers fell into. 

Ms Mncube elaborated on her previous questions by saying that the Department’s strategy should extend to educating South Africans about immigration and residence procedures. In some cases where people had become naturalised South African citizens, they were still referred to by South Africans as “foreigners”.  She even knew of cases where naturalised citizens were chased away when attempting to register to vote.

Ms M Makgate (North West, ANC) referred to the amendment that would require children under the age of 16 to hold passports in their own names, and asked what the implications of that would be.  She pointed out that currently, many children of that age did not even have ID books.  She referred to the proposed amendments of Section 10 of the Act, governing changes in status, and asked up to what point foreigners would be given the chance to change their status.  She pointed out that the proposed amendment to Section 15, which referred to businesses that were “prescribed to be in the national interest”, should comply with other legislation governing the running of businesses in South Africa. 

Ms Mncube said that in her constituency, there was a case where the local communities fought with foreign nationals because they had illegally converted 56 RDP houses into spaza shops.  In some situations, foreigners bought RDP houses from child-headed homes and other vulnerable people to be used for commercial enterprise.  It was that type of abuse that had prompted the Gauteng provincial government to temporarily close down all shops owned by foreigners in the affected areas until an enquiry could be completed.  She knew of a case in which foreign spaza shop owners had gone to Pretoria to get advice, with the result that they returned and re-opened their shops, boasting that their rights were stronger than those of South Africans.

The Deputy Minister said that there was a need to understand the refugee system on a broad scale.  This meant that as part of the family of nations, South Africa held certain obligations relating to international law and international custom.  When South Africans had to leave the country because they were being persecuted by the apartheid regime, they were given protection by other states.  Many fled to neighbouring states, where they were given refugee status and travel documents to allow them to move further afield.  Prior to 1994, South Africa did not adopt any of those international obligations, but since South Africa joined the family of nations, it had to comply with international obligations and basic human rights.

South Africa had duly taken on board the issue of refugees.  It was the policy to grant refugee status to people who met the requirements of one of three categories.  In order to receive refugee status, they should have a well-founded fear of persecution, or their country should have been invaded by an aggressive force.  Additionally, refugee status would be granted to a dependent (spouse or child) of a refugee. In relation to foreign nationals who were running small-scale businesses, the Department found that 95% of the time, such people had been granted refugee status.  In many cases, people who were actually economic migrants were abusing the services provided by the Refugee Reception Centres. 

The current system was flawed, because when a person arrived at a Refugee Reception Centre, they were automatically granted a Section 22 permit, regardless of whether or not they were screened to determine whether they met one of the three requirements for refugee status.  It was not the policy of the Department of Home Affairs to grant such a permit.  Rather, it was the Standing Committee on Refugee Affairs that allowed the permit to be granted to anyone who reported to a Refugee Reception Centre.  The permit allowed one to study, work, or run a business in the Republic for a period of six months, and that was how spaza shops and other foreign-run businesses were established.  Checks and balances were provided by the issuing of work permits, and the process by which they were issued.  The Refugee Reception Centres were currently inundated, and that lead to a delay in the processing of new applications, which were being received on a daily.  After the expiration of the initial six month period, the tendency at most Refugee Reception Centres was that people came back to renew those temporary permits because they still had not received a date for an interview.  At such an interview, an application for refugee status would be investigated, and the applicant would either be accepted or rejected as a refugee.  Some of the better-managed Refugee Reception Centres issued the temporary permits for three months, until such time as a date for an interview could be set.

The Deputy Minister said that the issue of compliance with legislation governing the running of businesses was a separate issue.  The Department of Home Affairs did not regulate how businesses were run and how business regulations were complied with.  There were huge gaps in the procedure by which a business was registered, but that was a matter for the Department of Trade and Industry to regulate.  Municipal by-laws were in existence for a reason, but there was a history of non-compliance with such by-laws.  When South African citizens opened spaza shops in the townships, it was usually in contravention of municipal by-laws.  Communities needed to understand that if foreign nationals were required to comply with laws and regulations, there would have to be compliance within their entire communities, since there had to be equality before the law.  There were dangerous business practices that were on-going in the townships that would not be found in Central Business Districts of urban areas because of different levels of enforcement.

Mr Jackson McKay, Deputy Director-General: Immigration Services, Department of Home Affairs, said that South African children were issued passports with the number that was listed on their birth certificates.  The amendment would require that foreigners’ children should also have personal passports when entering the Republic.  The requirement was aimed at curbing human trafficking and child smuggling.

In terms of an implementation strategy, the Department would be looking more closely at the making of regulations, training staff and implementing the regulations.  The Department would use existing stakeholder forums to advocate new changes and ensure that people understood the concept of naturalisation and other matters regulated by the legislation.

On the issue of changing a person’s status, he said that a substantial number of people entered South Africa on a visitor’s visa, because the requirements for such a visa were not very onerous.  A person merely needed to show that she had sufficient resources to sustain herself for 30, 60 or 90 days, and to pay the cost of a return trip to her home country.  In practice, once people arrived in the country, they looked for jobs and married South African citizens fraudulently in order to be allowed to stay in the country.  People who initially arrived on a visitor’s visa were now making applications for work permits and spouse permits.  The Department found it strange that people who arrived in the country on a visitor’s visa brought all of their personal goods with them.  In terms of the amendments, if people wanted to change their status, they would be required to return to their country of origin and make application from there.

The proposed amendments would still be debated, and that the Act would only come into operation once the regulations were ready for publication.  The process of approving the amendments to the Act was being run parallel to the drafting of the regulations, so that once the Act was finalised, the regulations would be about 90% complete.  There was also a need to get input from the Regulation Advisory Board.

Adv Erasmus referred back to the presentation, and clarified the information reflected on pages 40 and 41.  The current situation regarding Section 27(c) of the Act had been stated incompletely.  Currently, Section 27(c) did not refer back to Section 15, which related to business visas.  The proposed amendment to Section 27(c) would add the words “contemplated in Section 15” after “business” in order to make it clear that a business visa was being referred to in that provision.

The Deputy Minister pointed out that one of the major changes to be brought about by the legislation was that any temporary permit would be called a “visa”, while only a permanent resident permit would be referred to as a “permit”.  This was important, because the courts did not seem to grasp that “permit” connoted a temporary period, and had been struggling to interpret the legislation properly. Currently, Clause 26 of the Bill, entitled “substitution of words” made the change, and stipulated that it applied throughout the legislation.  This was potentially problematic, since the Act was part of a complicated legislative regime, and there was a need to look at three pieces of legislation to try to understand the legal position regarding immigration.  The Department was concerned that a person reading the Act would not understand the changed terminology, as the change only became apparent part-way through the legislation.  Her inclination was to change the relevant terms each time they were mentioned in the Act, so that there would be no risk of uncertainty.  She requested the state law advisors to check what the procedure would be, and suggested that they bring the issue back to the Select Committee upon their next meeting.  She emphasised that the proposed changes in terminology were primarily for the benefit of judges, as in many cases, the courts had misunderstood the law, and that was a problem that should be avoided in future.

Ms Mncube said that she wanted to go back to the Office of Refugee Status in Pretoria, as she thought there needed to be engagement with them.  Officials there had apparently told foreign nationals living in local townships that they had the right to re-open their shops, and when they did so, it caused further conflict in those affected areas. The Deputy Minister responded to Ms Mncube’s concerns by saying that there were probably specific individuals involved, and that the Department would investigate the matter further.

The Chairperson thanked the Deputy Minister and her team for presenting the Bill to the Committee.  She said that the Committee needed a chance to process the Bill with their law advisor, and that at the next meeting, the Committee would be able to give its official response to the proposed amendments.

Mr Monwabisi Nguqu, Senior State Law Advisor: Office of the Chief State Law Advisor, said that the legal advisors had advised the Department on the dangers of effecting the amendments in the way the Deputy Minister suggested.  The way in which the Bill currently set out the changes reflected standard practice, and made it easier for the publishers of legislation to change the terminology in previous renditions of the Act.  If the changes were made in the way suggested by the Deputy Minister, it could make it too easy to make a mistake by missing out on one change, which could in turn cause an interpretive crisis.

The Chairperson said that if were any further administrative issues that needed to be attended to in that regard, the Department would be welcome to bring them before the Committee the next time they met. 

The Deputy Minister added that Members should not be intimidated by the issue, as it was not a legal issue, but merely a stylistic one.  She said that if what the state law advisors said was going to happen was true, and that LexisNexis and Butterworths would take responsibility for replacing the terms, clause by clause, that would be fine.  She said that she personally had served as a Chairperson for over ten years, and that in her experience, what the state law advisors were calling “standard practice” was not standard, but was mere laziness. She reiterated that the main aim of the change in terminology was to eradicate confusion emanating from the bench.  If each and every clause were changed to reflect the changed terminology, those problems would be avoided.  It did not matter how it came about, but when the amended legislation was promulgated, it should read “visa” instead of “permit” from the very first section of the Act that contained those terms.  The state law advisors needed to approach the relevant publishers to ensure that they would in fact make the changes each time that it was necessary.  The state law advisors had already gone through the legislation clause by clause, and were being over-cautious. They were being paid to do their jobs and it was their responsibility to go through each clause systematically so that they would not make any omissions.

Mr M de Villiers (Western Cape, DA) said that the state legal advisors needed to include a complete definition of the terms “visa” and “permit” in the legislation, and that if those definitions were included, there would not be a problem.  The Chairperson asked the Members to save such commentary for the next time the Committee met with the Department.

The Chairperson said that at their previous meeting, the Committee Members had resolved to process the minutes of each meeting held during the year, so as to avoid a backlog of minutes.  The Members accordingly reviewed the minutes, and made changes involving minor spelling and grammatical errors.  The minutes for the meetings held on 25 January, 08 February and 08 March 2011 were formally adopted.

The Chairperson said that the adoption of the Committee’s Strategic Plan would be held over until the next meeting.

The meeting was adjourned.