Immigration Bill: hearings

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
23 April 2002
IMMIGRATION BILL: PUBLIC HEARINGS

Co-Chairpersons: Mr Mokoena (ANC)
Ms Jacobus (NCOP, ANC)

Documents handed out:
Immigration Bill [B79 – 2001]
Submission by the Africa Institute of South Africa (Appendix 1)
Submission by the Institute for Security Studies (Appendix 2)
Submission by the South African Police Services
Submission by Black Sash
Submission by the International Education Association of South Africa (Appendix 3)
Submission by the South African Human Rights Commission
Submission by the United Nations High Commissioner for Refugees (Appendix 4)
Submission by Lawyers for Human Rights (Appendix 5)
Submission by National Consortium for Refugee Affairs (Appendix 6)

SUMMARY
Submissions were received from non-governmental organisations; the Africa Institute of South Africa, Institute for Security Studies, South African Police Service, Black Sash, International Education Association of South Africa, South African Human Rights Commission and United Nations High Commissioner for Refugees. All the organisations recognised the need for new immigration legislation but none were convinced that the Bill went far enough to uphold principles contained in the Bill of Rights especially in respect of the protection of refugees. The South African Human Rights Commission went as far as saying that the processing of the Bill should be postponed so that the criticism could be appropriately addressed.

The submission of the Refugee Rights Project at Lawyers for Human Rights was on concerns around Clause 45, dealing with aiding and abetting, is especially problematic, where illegal foreigners are denied all kinds of protection. It was suggested that the wording should be more specific. Furthermore, reporting and investigation of non-nationals should be left with the Department and the newly established investigation unit, which is assumed to be able to manage the situation more sensitively and with more professionalism. They argued that there are inadequate procedures for the apprehension of illegal foreigners, and the Bill gives a great discretion to the police as to whom to approach for identification. Submissions around the reasonable grounds and onus of proof, including the arrest procedures in the Bill, were highlighted.

The National Consortium for Refugee Affairs, an umbrella organisation providing a platform for human rights organisations, refugee groups, service providers and other institutions, also made submissions to the Committee. They argued that the new Bill falls short of the standards of human rights protection afforded to non-nationals in this country.

MINUTES
Africa Institute of South Africa
The submission was presented by Dr Sehlare Makgetlaneng, a senior research specialist at the Institute. The main idea in the submission was that the Bill discriminates against Africans in favour of persons from wealthier developed countries. He submitted that Clause 8, dealing with investors and self employed persons, Clause 13 dealing with the retired person permit and the grounds for residence provision is discriminatory. The basis of the submission is that priority is given to those persons who have capital at the expense of the poor from developing countries.

Mr Makgetlaneng also pointed out areas where the Department should not shift their duties to third parties. These include the issuing of crewman permits by shipowners and the role that the chartered accountants profession plays in certification.

A contentious submission made by the Institute was that most land in SA is owned by foreigners and that government should restrict foreign land ownership because in the future government will have to buy back the land at an inflated price to cope with land shortage.

Please refer to the full submission attached hereto.

Discussion
Mr Sikakane (ANC) referred to the submission that South Africa must be foreign investor friendly but not at the expense of foreign social forces. Could the presenter explain this because foreign investment is good for the country and he could not see the reason for accepting people who do not invest.

Dr Makgetlaneng replied that when we allow people to enter for specific reasons then certain individuals are favoured. There is an implied interpretation in the Bill that skilled groups are favoured at the expense of labour. It can be implied that the skilled have capital and labour does not. He cautioned against such an approach.

Mr Smith (IFP) asked for a brief description of the Institute. The view of the Institute is that the Bill prioritises the interests of the rich, did they want to grant carte blanche for anyone to come into the country. It was submitted that before a foreigner can obtain a work permit it must first be ascertained whether there are South Africans that can fill the position. The Member commented that the Bill tries to simplify things and do away with processes that did not work. On the land issues the Member asked if the presenter was asking that foreign land ownership should be dealt with in the Bill.

Mr Grobler (DP) said that an investor friendly environment will benefit South Africans and was puzzled by the negative submission.

Dr Makgetlaneng said that the Institute was formed by the government in the 1970’s to research African affairs and the relationship of South Africa with the rest of Africa. The Institute is funded by the government through the Department of Arts and Culture.

He said that it was not the position of the Institute to have an open door policy but that South Africa had a role to play in the broader development of African countries. The level of poverty in the home country forces migration to South Africa.

In response to the land issue he said that it should not be addressed in the bill. Africans are not favoured by the bill; it favours the rich. When the wealthy come to South Africa they buy land, therefore ownership must be limited. It must be taken into account that foreigners do not buy land for production but for speculative reasons. It is a known fact that a large part of the land is owned by a few and this could cause problems in the future.

Ms Mars (IFP) was concerned about the statement made and wanted proof that most of the land is owned by foreigners. She referred to the submission on the crewman permit and said that it would be cumbersome for the Department to deal with the issuing of these permits when the crew is sometimes in port for less than a day.

Dr Makgetlaneng clarified this, saying that the land is owned by a few but he never said by foreigners. The basis of the objection to having permits issued by the owner of the ship is because it is the responsibility of government through Home Affairs.

Prince Zulu (IFP) said that the presenter was critical of the role that chartered accountants will play in terms of the Bill. What other profession could do the job?

Dr Makgetlaneng replied that Home Affairs has the responsibility and they have individuals who can perform the same role. He did not understand why the accountants had to do the job of Home Affairs.

Ms Maunye (ANC) referred to the submission on the retired persons permit where it is submitted that Africans will not benefit. Should SA open its doors to people from all other African states?

Dr Makgetlaneng replied that he was concerned that the majority of Africans having no retirement funds converted or transferred to SA. He said that the key issue was that the rich are being allowed in, they buy the land and this has an impact on the land resource. It is not submitted that Africans should just be let in, only that the Bill favours the rich.

Institute for Security Studies (ISS)
The submission was presented by Dr Jakkie Cilliers.

By way of introduction Dr Cilliers said that he was no expert on migration and the ISS has no dedicated project on migration. There work relates to crime and crime patterns in South Africa. The ISS has experience in getting work permits for employees and the Bill does not make it any easier. The submission is aimed at making the work of the ISS easier.

He made the following points as a background:
South Africa will for a long time be seen as a country of hope for many inhabitants of other African countries and the pressure on SA will not decrease.
A policy that excludes non–South Africans from South Africa will be too expensive and at best SA can manage the influx of foreigners but not stem the tide in a meaning full manner.
It is better to know who is entering the country than to criminalise migrants.
Most illegal migrants are not involved in serious crimes. Those involved in the drug trade have entered the country legally.

On issues that affect the ISS; the organisation itself as well as education intuitions need to engage foreign staff and the Bill should facilitate this. It is submitted that the system of permits in the Bill is complex. Recommendations are made in respect of the entry permit, relatives permit, work permit and corporate permit. The recommendations seek to simplify the system and facilitate the sharing of information in the field of comparative research.

Please refer to the full submission and the recommendations attached hereto.

Discussion
Mr Smith referred to the submission that the onus should not be shifted on the employer in Clauses 41 and 45 to report illegal foreigners. How would one deal with the problem without the reverse onus? There are employers who deliberately seek out illegal migrants for cheap labour.

Dr Cilliers replied that making everyone a police informer goes too far and to do this an extensive system of control is needed. The system needs to be relaxed.

An ANC member reiterated the point that farmers exploit the illegal migrants and often have them deported without receiving any remuneration for work they have done. Does the Bill solves this problem?

Dr Cilliers relied that because migrants are criminalised it makes it easy for employers to exploit them. The focus of the submission was not on the informal sector. A solution might be to allow migrant entry into SA on temporary work permits or there would be no control. The illegal must be brought into the system.

Ms Ntlabati was convinced that the ISS recommendation that a person who enters on a relative permit should be allowed to work was open for abuse.

Dr Cilliers said that he looked at it from the point of view of the temporary work permit. The problem is that a highly skilled doctoral student is employed but then his wife who is also skilled is not allowed to work. This is inappropriate.

South African Police Service (SAPS)
The presentation was made by Director NF Van Graan of SAPS Legal Division.

The Director submitted that the Bill was a source of confusion for the SAPS because their role was not clearly defined. It is in fact silent on the function and responsibilities of the SAPS. Further it was not clear who exactly will enforce the Bill because of the definitions of ‘officer’ and ‘immigration officer’ which seems to suggest that there will be other persons performing an enforcement role other than Home Affairs.

Clause 23(1)(9)(b) states that foreigners who have a warrant against them in SA or any other country that has regular diplomatic relations with SA can be excluded. It was submitted that even if the persons is investigated but not yet charged an exclusion should apply. Also it made no sense to limit the provision to countries who have regular diplomatic relations with SA because surely all undesirables should be refused entry no matter what country they are from.

Clause 28 does not have Intelligence and SANDF represented on the Immigration Advisory Board. It is suggested that Safety and Security as a whole must be represented.
The bill should clearly state the powers of the Department of Home Affairs will only relate to the enforcement of this Bill and that it will not impact on the powers and functions of SAPS. This is important because SAPS plays an important role in border control and cross border criminal activities.

The outsourcing of functions of Home Affairs in Clause 29(2)(k) could open the door for legal uncertainty and corruption. For the clause to be effective there must be training and proper control measures.

Clause 30(j) allows Home Affairs to enter into agreements with other Departments to boost its capacity. It was submitted that there must first be a consultation process.

Clause 31 gives the impression that Home Affairs will be responsible for terrorism, arms and drug trafficking, smuggling and organised crime. It is submitted that it is the responsibility of SAPS and that Home Affairs is responsible for migration control. It is suggested that the Director General of Home Affairs must liaise with the SAPS to ensure co-ordination and no blurring of line functions and responsibilities.

Discussion
Mr Chauke (ANC) asked what is the current arrangement in respect of border control between Home Affairs and SAPS.

Mr Van Graan replied that there are fourteen border posts that are exclusively manned by SAPS. He was not however in a position to say how the two Departments work together currently because that fell under another Director.

Mr Chikane (ANC) referred to the submission that the SAPS was not consulted during the drafting phase. He asked for clarity.

Mr Van Graan said that SAPS had made inputs but knew that more discussions had to take place. In August 2000 the Deputy Director General and the Special Advisor to the Minister informed SAPS that the Bill would be discussed with various stakeholders. At the meeting Home Affairs was informed that there are a number of issues that bothers SAPS but were assured that the Bill is in cast in stone and further discussions would take place. Since that day there has been no discussions.

Prince Zulu (IFP) commented that it might be that Intelligence is deliberately omitted from the Advisory Board because of its sensitive nature.

Mr Van Graan replied that Intelligence is not that sensitive that it should be included. Crime can only be combated if there is intelligence therefore they are needed on board. There can be no action without intelligence.

Mr Morwamoche asked how SAPS viewed immigration courts.

Mr Van Graan replied that he is not opposed to the idea.

Clause 36 establishes an investigating unit within Home Affairs. Mr Tolo (ANC) asked if it was necessary for Home Affairs to investigate. Might it not be the responsibility of another Department?

Mr Van Graan replied that the investigating of crime is essentially a SAPS function. The official viewpoint is that investigation should be the responsibility of SAPS but Home Affairs do have a role to play.

Mr Chauke asked if SAPS would first want to have a discussion with Home Affairs around Clause 30(j) before the bill is passed.

Mr Van Graan said yes.

Mr Smith pointed out that 30(j) states that the shifting of resources will be done in terms of an agreement and this meant that there would be discussion.

Mr Van Graan conceded that he had made a mistake and was happy with the provision.

Ms Maunye asked if the police could arrest and search without a warrant.

Mr Van Graan replied that under certain circumstances and in line with the Criminal Procedure Act the police can arrest and search without a warrant.

Mr Smith referred to Clause 36 and Clause 37 and asked if it was in line with current practice.

Mr Van Graan was satisfied that that it was in line with current practice.

Black Sash
Ms Isobel Frye presented the submission, which was directed at the rights of refugees and asylum seekers. Immigration legislation must give effect to the Bill of Rights.

It was submitted that South Africa needs to be protected from a swell of illegal aliens but at the same time the rights of refugees and asylum seekers must be protected. Black Sash is concerned that the bill does not dovetail with the Refugees Act and in certain instances seems to override the rights conferred to refugees in the Refugees Act.

The main concern of Black Sash is the following:

Asylum seekers are not appropriately dealt with in the Bill. Classes 3 to 19 lists the types of temporary residence permits. Clause 18 mentions an asylum permit. In term of the Bill an asylum permit can be issued subject to the Refugee act. The Bill itself does not define a refugee and the reader is referred to the Refugee Act, that states a refugee is one that has been granted asylum in terms of the Refugee act. The Refugee Act provides the asylum seeker with an opportunity to apply for asylum but no such provision exists in the Bill. Black Sash therefore wants the Bill amended to include a definition of asylum seeker. Furthermore, Regulation 2(2) of the Refugee Act must be incorporated into Clause 18 of the Bill. The regulation gives the asylum seeker fourteen days to apply for asylum.

Discussion
Ms Mars commented that SA would have to deal with many more asylum seekers and the process would be formidable. People will just say that they are seeking asylum and then they will have to be allowed entry. The matter needed some thought.

Ms Frye replied that the recommendation is to facilitate those who want to get into the country to apply for asylum. It is difficult to argue that South Africa does not have an international responsibility to do this. It is better to do this at the border post than to pick them up in the country and then have them apply.

Mr Smith said that he understood that 4 million illegals were in the country. If the recommendation is accepted then there would be 4 million people saying that they want to be processed as asylum seekers. After 14 days these people will not be seen again. It is certainly easier than crawling under a fence.

An ANC member said that she had a problem with the recommendation of Black Sash as it would be a problem for the country.

Ms Frye reiterated that SA has an obligation in terms of international law. Even if persons do not qualify for asylum they will still enter.

The Chair asked for international examples of how refugees are dealt with.

Ms Frye said that she could only speak of the UK.

The Chair asked what happened to an asylum seeker at a port of entry in the UK.

Ms Frye replied that she did not know.

The Chair said that the Members did not want SA to be used as an experiment. He thought the presenter could back up what she was saying but she does not know.

Ms Frye explained that Regulation 2(2) of the Refugee Act allows asylum seekers 14 days to apply for asylum. She just wanted the right clarified in the immigration bill.

Mr Lekgoro (ANC) said that the presenter raises valid questions but that the solution was a problem.

International Education Association of South Africa (IEASA)
The submission was presented by Professor Martin West. The contribution of IEASA relates to Education. The following proposals were made:

1. That foreign academic visitors engaged in research or on sabbatical leave should be able to paid for limited work undertaken which is incidental to the primary purpose of their visit.
This proposal is in line with international practice, where international academic visitors may be paid for casual lectures, seminars and the like. We do not believe it is sensible to require a work permit for such limited purposes.

2.That holders of student permits should be allowed to undertake limited part-time work, to be prescribed by regulation.
This is again in line with best international practice where foreign students can undertake limited
work. This is important for many foreign students from developing countries, notably from Africa,
who sometimes struggle to meet incidental living expenses.

3. That there be a clear definition of practical training as envisaged in Clause 6 (3).

4. That it is unnecessary for minor students at public higher education institutions to require local guardians.

5. That the Bill state that holders of relatives permits may be permitted to study.

6. That Section 12 could be improved in three ways: (a) by broadening the unnecessarily restrictive requirement of certification by a chartered accountant, (b) by allowing work permit holders at higher education institutions to study, and (c) by clarifying that work permit holders may hold student permits, to complement the existing Section 6 (3) (b).

7.That Section 42 (2) and Section 43 (2) (although we understand the latter not to apply to higher education institutions) are inappropriate, and our advice is that they are unlikely to survive Constitutional Court scrutiny. We propose that they be scrapped.

8. Section 45 is far too broadly-framed, and the proposal is that the Bill should list specific offences only.

As currently framed one could be prosecuted under this Section for knowingly helping an illegal foreigner across a street. More seriously, it could be illegal to provide legal advice to an illegal foreigner or to offer emergency medical assistance.

The recommendations are attached hereto.

Discussion
Ms Van Wyk (UDM) said that people have submitted that universities should be allowed to issue permits. He asked for the Professor’s view on this and whether Universities had the capacity to perform the duty.

Professor West replied that he had no objection to the universities issuing the permits and that most universities would not have a problem with capacity. If there is a capacity problem then Home Affairs will take on the responsibility.

Mr Tolo (ANC) asked if it was right for the Department to have chartered accountants do their work.

Professor West’s personal view was that CA’s are not needed, but if they are going to be used the provision should be broadened to allow all accountants who are qualified to the work and not reserve it for a few.

A Member disagreed with the submission on the relatives permit because people would abuse it.

Professor West replied that the submission had nothing to do with getting more people into the country. All that is said is that if the person is already in the country the person should be allowed to study.

South African Human Rights Commission (SAHRC)
The submission was presented by Ms Majodina, a Commissioner, and Ms Judith Cohen, Parliamentary Officer. Mr Victor Southwell was also present.

The Commission was unsatisfied with the process involved in getting the Bill to Parliament. It was submitted that there are numerous criticisms leveled at the Bill and the time frame to adequately process the Bill is to short. It was proposed that the Committee should consider postponing the Bill.

The SAHRC had made comments on the Bill in 2000 and identified six areas of concern, namely:
-Management of internal migration
-The fight against xenophobia and racism
-The application of the bill of rights to non-citizens
-The proposed appeal procedures
-Places of detention
-The risk of corruption.

Amendments are suggested under the above headings.

Discussion
Mr Sikakane (ANC) said that he battled to see where the Bill encourages xenophobia. He wanted to know where was the violation of human rights when asking illegal aliens to produce papers and then take then home to produce it. He used an example of Mexicans in the USA. The US government was unaware of the large amount of illegals and only became aware of the problem much later. The US then introduced fines against farmers who hired illegals

Ms Majodina said that in the submission there was a look at the history of immigration legislation. The Aliens Control Act gave permanent residence or citizenship if the person can be assimilated into the white population. The law was deeply rooted in racism. Today the undocumented migrants are mainly from African countries. The migrants do not only come from nearby countries but from far afield so they are clearly visible on the basis of their physical features and the clothes they wear. In many instances people are physically manhandled and abused. The SAHRC feels that the Bill does not do enough to combat this behavior by the officials and the public. There are many Asians and Eastern Europeans who are illegals but they are not picked up from off the street and cannot be found in the detention centres.

She added that the Bill of rights is for all the people in the country. The only rights that are excluded are the civic rights.

SAHRC has nothing against managing the movement of people in a fair and just way. It is not submitted that people should not carry identification but the way in which it must be produced is problematic.

Replying to the comment on Mexico, she said that the US has now entered into bilateral agreements with Mexico whereby migrants are granted access to come and work for a specified period of time.

Ms Van Wyk asked what should happen if a child is detained with parents because surely they cannot be separated.

Ms Cohen responded that it would be a clear violation of the UN Convention of Human rights if a child is separated from the parents. It is therefore important to think creatively about implementing the rights of children. A solution might be to fast track cases where children are involved.

Mr Southwell concluded by illustrating the problems of xenophobia. A community drove foreigners from their homes and torched it. When the foreigners went to the police to seek help they were asked to identify themselves. Because papers were destroyed in the fire many people who were legally in the country were locked up in Pollsmoor. The people had to suffer a double humiliation.

United Nations High Commission for Refugees (UNHCR)
The submission was presented by Ms Bemma Donkoh, a UN representative at the UNHCR branch office in Pretoria.

The UNHCR supported the 1997 Green Paper that put forward the principle that Immigration legislation and refugee legislation must be separate. It supported the view that refugee status determination should be decided by an independent body. The UNHCR also participated in the White Paper process. It was submitted that the UNHCR is concerned that the Bill undermines the principles of International Law, the Green Paper, the White Paper and the Refugee act.

UNHCR raises the following issues:

The Bill replaces the Refugee Appeal Board with immigration courts. The separation no longer exists. By turning the process into a judicial one it will be less accessible for refugees. She added that the UNHCR will promote either model if due process is guaranteed. The idea of a review mechanism is supported but the personnel must be properly trained. The UNHCR recommended a phased-in implementation of the Bill in that the immigration court must not decide refugee matters until presiding officers are trained in refugee law.

Clause 55(1) calls for a restructuring of the Department. UNHCR is concerned that in the new structure refugee protection will fall under the general framework of migration control and administration. The UNHCR suggests that Clause 55 be reworked to ensure that the Refugee Act is not undermined.

The UNHCR raised the same point as Black Sash in relation to the asylum permit. It is recommended that Clause 18 be deleted or that the provisions of the Refugee Act should be incorporated into the Bill. The UNHCR just wants to consolidate what is already in the Refugee Act.

A further concern is that if a refugee enters the country in terms of the Bill then the refugee will be treated as an illegal foreigner. It is contrary to international law to impose penalties on refugees and if they are classified as illegal foreigners then this could occur. It must be clear that the rights given to refugees in the Refugee Act is not diminished in the Bill.

It was submitted that the Bill seems to have good intentions but in the light of other submissions the problem of xenophobia has to be watched carefully.

The UNHCR hoped that their comments would be taken into account to ensure that the Bill is consistent with domestic and international refugee law.

Discussion
Mr Chikane said that SA is a UN signatory but it is a developing country. He asked how could South Africa take in a person who had been a dictator in another country.

Ms Donkoh replied that in terms of international law countries can exclude undesirables.

An ANC member asked what it means to say that no person may be refused entry. Will we not have an influx of people into the country? She also did not agree that they should be given travel documents once in the country.

Ms Donkoh replied that the prohibition against the refusing of entry refers specifically to international law and agreements. None of the agreements expects countries to loose the prerogative of controlling their borders. The agreements simply recognise persons who deserve the protection of host countries. They are not criminals but are fleeing danger because of their religion, race or class etc. She said that we would all agree that these persons must be given a chance to explain themselves.

In respect of the travel documents she said once a refugee has proven the case for asylum there is no reason why the host country can refuse travel documents as they have the right to freedom of movement. South African leaders should know the value of travel documents when in that position.

Mr Smith read a quote that suggested that xenophobia was a perceived problem and that the real issue was that locals did not like seeing foreigners having work while they are unemployed. He asked how real is xenophobia.

Ms Donkoh said that sometimes there is a misconception that competition exists. There is also a misunderstanding that if anyone has something that it must have been taken at someone else’s expense. The UN sees education as playing an important role in combating this. People must be made to understand that there is no real threat. She concluded by saying that xenophobia is a real problem because there are daily reports of discrimination and physical attacks.

The meeting was adjourned.

Appendix 1:
THE AFRICA INSTITUTE OF SOUTH AFRICA’S COMMENTS ON THE BILL
Honourable Mr Aubrey Mokoena, Chairperson of the Portfolio Committee on Home Affairs,
Honourable Members of the Portfolio Committee on Home Affairs, Ladies and Gentlemen,

The Africa Institute of South Africa is highly appreciative of the invitation the Portfolio Committee on Home Affairs extended to it to participate in the public hearing on the Immigration Bill and to brief the Portfolio Committee on Home Affairs on the aspects of the Immigration Bill it deems necessary.

The following is our humble submission:

ON SECTION 5: DIPLOMATIC PERMIT, PAGE 7
The issue of issuing a diplomatic permit is the responsibility of the Department of Foreign affairs and should remain the responsibility of the department of Foreign Affairs. The whole section should be deleted from the Bill.

ON SECTION 8: INVESTOR AND SELF-EMPLOYED PERSON'S PERMIT, PAGE 8
The Immigration Bill is purported to be investor friendly. We have no problem with the Immigration Bill being foreign investor friendly. Our position is that it should be foreign investor friendly not at the expense of other foreign social forces. This is the case given the fact that it prioritises the interests of the rich those who have capital at the expense of the poor from the developing countries.

The Bill gives more priority and preference to those who have capital to come to South Africa with no hindrance. It discriminates against those without capital, specifically Africans. There is potential for corruption. The financial or capital contribution must be clearly spelled out. There should be additional regulations within the Ministry to ensure that there is no corruption.

ON SECTION 9: CREWMAN PERMIT, PAGES 8-9
It is a security risk and inconceivable that the owner particularly of the foreign vessel be given authority to issue permits to enter South African ports. The authority to issue a permit is the responsibility of the state_.

Subsection (b) should be deleted.

ON SECTION 12(i): SUBSECTION B: WORK PERMIT, PAGE 9
This requirement is dangerous. A work permit is bought by paying a fee. It favours big multinational or transnational corporations. It has potential for corruption. If this clause is to stand, there must internal, departmental regulations to guard against corruption.

There should be mechanisms to find out if there are South Africans who can fill or occupy positions in question. These positions should be advertised in the South African papers.


ON SECTION 13: RETIRED PERSON PERMIT, PAGE 10
The section is discriminatory against Africans. It favours people from the developed countries. The majority of Africans would not have retirement funds converted or transferred to South Africa. The only people who are likely to benefit are those who are not Africans, particularly from the developed countries.

The Africa Institute of South Africa strongly objects to this section.

Limits should be set on the extent of the foreign ownership of land in South Africa. This is for both historical and current political realities in the country. The historical reality of South Africa regarding land ownership is that the majority of South Africans were forcibly alienated from the land resource. Indeed, the current South African reality in terms of the land question is that the vast majority of South Africans are still largely marginalised from this important national resource. The sad truth of the matter regarding unrestricted foreign ownership of the land, is that we may find that due to land hunger among the majority of South Africans, the government may be forced to buy back the very land that it is currently making available to foreign owners at exceedingly inflated prices.

ON SECTION 16: CORPORATE PERMIT, PAGE 11
This section is discriminatory against South Africans.

A quota system must be specific and clearly spelled out. There must be sufficient, conclusive proof provided to show that no suitable candidates could be found in South Africa or in the Southern African region to fill or occupy positions in question.

This section must have strict regulations. Levels of skills and experience should be determined if there are no South Africans who can fill or occupy positions in question. Companies should advertise their positions in the South African papers.

The size of the companies must be specified. If the size of the companies is not specified, small companies can bring a lot of foreign workers into South Africa.

ON SECTION 22: SUBSECTIONS B, C AND E: GROUNDS FOR RESIDENCE, PAGES 13-14
They discriminate against migrant workers from neighbouring SADC countries. They favour those with capital and their immediate families. They are prone to fraudulent activities. They extend license for more fraudulent activities.

How do you determine fulfillment of requirements (i) and (ii) of subsection (e) and fulfillment of requirements of subsection (g).

ON SECTION 29, j (aa), (bb), (cc) and (dd), PAGE 17.
The tourism industry contributes seven per cent of the total Gross Domestic Product of South Africa. It is, therefore, important for job creation for South African nationals. This section favours and will benefit those who are not Africans as well as big businesses. It should, therefore, be revised so as to take into consideration the needs and conditions of South Africans.

The meaning of this section is such that foreign business organisations can bring ten or fifteen of their nationals into South Africa even without work permit.

ON SECTION 55: RESTRUCTURING OF DEPARTMENT, PAGE 29-30
This section should be deleted from the Bill.

The restructuring of the governmental department is administrative process which departments which normally undergo. The restructuring of the department is subject to the rules and regulations governing the public service pertaining to terms and conditions of employment_.

CHARTED ACCOUNTANTS
Charted accountants are mentioned throughout the Bill. In most cases they are given responsibilities which are responsibilities of the state through the Department of Home Affairs. To let charted accountants to handle sensitive security measures such as accreditation is too risky. There is a fundamental need for a provision of a clear definition of the role of the charted accountants in the Bill. The Department of Home Affairs should provide explanation as to why it sees the need to ask charted accounts to perform its duties.

Appendix 2:
SUBMISSION ON THE IMMIGRATION BILL
Jakkie Cilliers, Institute for Security Studies 23 April 2002

INTRODUCTION
Thank you for the invitation to address you this morning and for the opportunity to convey some comments on the Immigration Bill.
Let me start off my making the point that I am not an expert on migration. Nor does the Institute for Security Studies (ISS) have a specific research project that looks at these issues. We have, however, done substantial research work on crime and crime patterns in South Africa, on organised crime and linkages within SADC and on South African border control. All this material is available in full text on our website at wwvv.Iss.co.za and I believe that a number of members of the Committee receive our publications. We also have some experience in seeking work permits for ISS employees and share a number of challenges in this regard with other institutions such as universities.
My remarks are twofold. In the first section I will briefly comment on some basic aspects that I believe to be key in sketching the architecture for a reasonable system of migration management. In the second section I will focus on those specific aspects of the bill as they affect organisations such as the ISS. This latter section contains specific recommendations in the form of proposed amendments to the Bill.

BACKGROUND
Without belabouring the point, much of Southern Africa is caught in a spiral that would see annual reductions in all measurable indicators of the quality of life. In relative terms South Africa will continue to be seen as a destination that offers greater hope for a sustainable livelihood than countries such as Lesotho, Mozambique, Zimbabwe, Swaziland, Zambia, Angola, etc. Even peace in countries such as the DR Congo and Angola carry their own burden, as the large pools of illegal firearms circulating in those regions where demand was high as a result of armed conflict become available to feed South Africa's penchant for violent crime.
This situation implies that there is little prospect that the pressure on South Africa from foreign nationals to enter, trade and seek work, food and survival will decrease
- possibly the reverse. Nor will the commercial opportunities for criminal networks to penetrate South Africa as a lucrative domain in itself or portal into larger markets elsewhere decline.
As was the case with the pass laws and the attempts to exclude rural (black) outsiders from sharing the benefits of urban (black) insiders within South Africa under apartheid, a policy that largely seeks to exclude non-South African Africans from South Africa will be prohibitively expensive given these factors, resource constraints and our porous borders. At best we may be in a position to manage and channel the influx of foreigners to South Africa but not stem the tide in any meaningful manner.
This implies that we will have to accept a situation where we legalise and manage - knowing what is happening, who is entering, etc., instead of trying to restrict access to the extent that we consistently criminalize migrants and the associated burdens that this place on the Criminal Justice System. HANIS will go a long way in this regard if sufficient care is taken to ensure the integrity of the system.
To complicate matters, very few African countries have population registers. Therefore a citizen of Nigeria, Mozambique or Sudan can apply for and receive any number of legal travel documents - and use these for different purposes. To my way to thinking this has two implications:

- Any useful South African system of permits should include a system that register foreigners in a single database for correlation and comparative purposes and that should include a means for identification such as photograph and/or fingerprint.
- A decentralised system at entry points along our borders that provides some type of system of multiple entry permits for the vast majority of informal day-and short-term visitors that cross into the country on a daily basis to shop, trade or visit family. A system to do this will be expensive, but would then allow the authorities to focus on cross-border crime and managing migration as opposed to seeking to apprehend illegal migrants. Against this background the commitment by the Department to issue identity documents for cross-border passes is welcome (section 19(1)). Cross border passes only make sense, however, if it allows the individual concerned to do limited business such as individual trade and if the system is decentralized to border posts.

Some additional points of departure that I will not be commenting on:

- All persons within South Africa's borders should have some type of identification and/or proof of right to reside in South Africa (section 44) and an officer or a police officer should have the right to request such identification (i.e. not only on the basis of reasonable grounds that the person may not be entitled to be in the Republic). However, a person must be given a reasonable opportunity to provide such proof when taken into custody on suspicion of being illegally in the country.
- Persons can justifiably be denied certain services such as education, work, accommodation, etc if they cannot provide proof of their right to be in South Africa. But shifting that onus to report illegal foreigners to the police to employers, leaning institutions, the hotel and tourist industry, etc. as proposed in sections 41 to 45 may be going too far.
- The skewed composition of the Immigration Advisory Board (section 28) with no specific representation for business, the academic community or NGO's has been remarked on by others.
- The extensive reliance on proscribed regulations that could subvert legislation has also been highlighted.
- Finally, I think its only a statement of the obvious that the South African legal system cannot offer a 'normal' criminal procedure to process, for example, detention warrants for illegal migrants - yet there has to be some investigation / quasi-legal process rather than suspicion, arrest and deportation.

Generally border control has been improving in recent years, evident from the statistics from the various departments - despite the obvious resource, training and other constraints, including the lack of political support for NIDS. This leads one to the conclusion that even a moderate degree of upgrading and investment at the manned border crossings within the present system of doing things will yield significant successes with regard to both migration management and cross-border crime.
Research that the Institute conducted indicates that most of the foreign nationals in police holding cells (i.e. illegal migrants) do not reflect an association between alcohol, firearms and drugs - a key determinate for levels of violent crime, if not crime in general. This research provides some validation to the lack of involvement of a large segment of what can be termed 'informal' illegals in serious crime. On the other hand, by far the larger portion of those migrants engaged in serious crime (such as the hard drugs trade) enter the country 'legally' and are in possession of some type of South African identity or permit, mostly obtained through fraudulent means. These criminals should be targeted through intelligence-led investigations and 'sting' operations rather than spending significant time and resources on arresting people simply because they are illegal migrants. In short, the link between organised crime and foreign nationals from a number of African countries is clear but should not be confused with the linkage between illegal migrants and crime. In fact, South Africa has become a significant exporter of organised crime within SADC.

PERMITS
The remainder of my submission reflects specific recommendations on select sections of the bill as they directly impact upon the 155 and, I would assume, similar institutions.
Without seeking to be too harsh in my comments I think it fair to remark that despite its many improvements on existing legislation, the Immigration Bill before this committee will continue to make it difficult for organisations such as the ISS to work in support of peace and democracy in the region, penalise donors for supporting NGO's based in South Africa on a comparative basis, and generally detract from South Africa's ability to engage as an equal partner in the global research or academic community. These remarks obviously relate to the expenses and difficulties related to the employment of skilled foreigners, most of who presently enter the country on the basis of a work permit granted after an arduous application process.
The ISS is a non-profit trust, registered as such in terms of South Africa law, but working within the region to advance the cause of peace and security. Regional representation is crucial to our work (in particular since we view ourselves as a regional and not a national institution), similar probably to an African politics department within a South African university that seeks to give its students a better understanding of events in say West Africa by seeking to engage a lecturer from that region. As a footnote I should add that South Africans are always in the numerical majority in all such institutions/departments since all non-essential staff are recruited nationally.
For the purposes of comparative research and engagement in the international peace and security debate as it affects Africa, universities, institutes and research organisations such as the ISS also need to engage the services of research staff working on African issues from Europe, the America's, Asia, etc. Without cross­fertilisation we would be so much the poorer in our understanding of events. The Immigration Bill should encourage not complicate comparative research.

RECOMMENDATIONS REGARDING PERMITS
The system of permits listed in the bill is an awesome and complex assortment of categories to implement and manage. My remarks below are therefore aimed to accommodate our concerns within the existing categories and to simplify rather than add to the challenges that the Department will fact in implementing such a complex system from a practical point of view.
The paragraphs below provide for proposed deletions from the bill, insertions and explanatory notes. [Note: The latter are in italics and square brackets.]

Section 1 and 4: Definitions and General entry permit
[Note: The proposed amendments that follow under this heading seek to allow room for academic activities and regional NCO work from South Africa.]

1(xiv) "work" means business, commercial or remunerative activities within the Republic, excluding work on the basis of a permit referred to in sections 5 or 7, or work for a foreign employer pursuant to a contract which only partially calls for activities in the Republic, or work as a business or profession mainly based outside the Republic but requiring activities within the Republic, It excludes remunerative activities conducted as an employee of a public higher education institution or a not-for-profit organisation registered as such in terms of South African law, including registration in terms of the Non-Profit Organisations Act, 1997 (Act 71 of 1997).
4.(1) A general entry permit may be issued by the Department in respect of a foreigner who -
(a) holds a visa; or
(b) is a citizen of a foreign state prescribed from time to time; and/or [Note: There is no obligation to issue an entry permit since this 'may' be issued by the Department]

(c) provides the financial or other guarantees commensurate with the costs of repatriation as prescribed from time to time in respect of his or her departure. [Note: This provides some limitation on the discretion of the Minister]

provided that such permit -
(i) cannot exceed three six months and upon application may be renewed by the Department only once; and [Note: Six rather than three months to reduce work load. In the case of cross-border passes for persons living close to the border and crossing on a regular basis to visit family, purchase or trade, a limitation on the number of renewals would be extremely harsh. The word 'may' implies that there is no obligation or right to such a permit]

(ii) may be issued by the Department upon application for any period not to exceed three years at a time to a foreigner who has satisfied the Department that he or she controls sufficient available financial resources, which may be prescribed from time to time, and is engaged in the Republic in - [Note: the conditions of academic sabbaticals alone would demand substantial and innovative prescription.]

(aa) academic sabbaticals;
voluntary or charitable activities;
research; or
(dd) other prescribed activities.

(2) The holders of a general entry permit may not conduct work. [Note: See the proposed changes to the definition of 'work' h 1(xlv) above. The proposed change to the definition of "work" may require successive permits for work within NC Os, for example.]

(3) An illegal foreigner receiving a general entry permit shall comply with any terms and conditions which may be prescribed from time to time and provide the prescribed deposit to be forfeited to the Department in case of his or her non­compliance with this Act.

(4) Unless otherwise specified therein, a general entry permit does not allow its bearer to be admitted more than once, provided that it may be prescribed that in the absence of such specifications such permit may authorise multiple admissions from prescribed foreign countries. [Note: This appears contradictory. In any case, an academic conducting research work in the region or a person on a sabbatical will inevitably require multiple admissions. Similar with regard to the cross border pass reflected in section 19 below.]


(5) (4) Special financial and other guarantees may be prescribed in respect of the issuance of a general entry permit to certain classes of foreigners prescribed from time to time.

Section 11: Relatives permit
11.(1) A relatives permit may be issued by the Department to a foreigner who is a member of the immediate family of a citizen or a resident, or in possession of a temporary residence permit as set out in sections 4 to 18 provided that such citizen or resident provides the prescribed financial assurance, certified by a chartered accountant, that he or she has the means available to support such foreigner for the duration of such permit.
(2) The holder of a relatives permit may not conduct work. [Note: Little logical or practical advantage will be gained by denying the immediate family of a person with a temporary residence permit the right to work except to serve as a disincentive to accepting employment in South Africa, particularly for skilled persons.]

Section 12: Work permit
[Note: Should the proposed amendment to the definition of "work" proposed above not be acceptable, the proposed amendments in this section reflect an alternative, if less practical, proposal for organisations that have a legitimate and justifiable preference for non-South African employees h certain categories. In this context the challenge facing such employers when competing on the international market for skills is generally the ability to offer competitive international remuneration and not that of remuneration below comparable South African standards. This proposal suggests that the Department consider a system of registration by public higher education and non-profit institutions to exempt them from the requirements to seek South Africans for specific jobs where a motivated preference is submitted and approved by the Department for employing non-South Africans. Such an approach would obviate the requirement to engage with the Department of Labour Registration could be reviewed every ten years and could allow the registered institutions to apply and automatically receive work permits within a set proportion of their total staff Such registered institutions should not contribution to the training fund. It does not deal with the problematic devolution of responsibilities to chartered accountants.]
Insert new par 12(2):

(2) Notwithstanding the requirements of section (1) above, public higher education institutions and not4or-profit organisations registered as such in accordance with South African law and the Non-Profit Organisations Act. 1997 (Act 71 of 1997) may seek accreditation to the Department to recruit non-South African staff where this is a clear work or teaching requirement. Such accreditation shall be granted by the Department based on the nature of the tasks to be executed. lapse every ten years from date of accreditation and require a new motivated request submitted to the Department 20 working days before such lapse if to be considered for uninterrupted transition from one accreditation period to another. In terms of this accreditation -
(a) Employers will be granted permission to request work permits for a maximum period of three years at a time from the Department for an approved ratio of their total staff. Once granted. each request for a work permit in terms of this section will be certified by the employer in terms of the accreditation status, ratio provided for in the accreditation granted by the Department. present number of employees employed in terms of the accreditation and the fact that the terms and conditions under which the employer intends to employ such a foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment.
(b) Registered employers will not be required to pay the fee referred to in 12(1)(b) above. [Note: The requirement for NGO's or academic institutions, to pay a fee based on ratio of the foreign employee's remuneration is unfair where there is a legitimate motivation to employee non-South Africans.]

(c) A lapse of the accreditation status of the employer will not affect work permits granted by the Department while the employer was accredited.
(d) Employers granted accreditation will not be prohibited from applying for additional work or other permits in terms of this Act.
[Note: Renumber the remaining sub-sections.]

Section 16: Corporate permit
[Note: An alternative if more complex approach could have organisations such as the ISS and academic institutions apply for a corporate permit, requiring an amendment to Section 1(vii) and Section 16. Such an approach would imply that organisations such as the ISS and academic institutions could apply for a corporate permit. According to section 16(7) "The holder of a corporate permit may employ foreigners in terms of section 12." Section 12 refers to work permits.]

1 (vii) "corporate applicant" means a juristic person established under the laws of the Republic or of a foreign country which conducts work business, charitable, agricultural of commercial activities within the Republic and which applies for a corporate permit referred to in section 16 of this Act. [Note: It is unclear, but unlikely, that the ISS or organisations such as universities would technically qualify as a 'charitable' organisation.

[Note: Further adjustments to section 16 are more complex since, for example, section 16(2) requires, amongst others:

- Consultations with the Departments of Labour and Trade and Industry regarding the establishment of quotas. This is difficult to apply where the grants/donations/contracts obtained are for work in the region requiring regional legitimacy or where the nature of the work (such as teaching) is demonstrably affected by the background and knowledge of the employee.

- Training for South Africans or contributions to the training fund (Section 16(2) (a)) where South African replacements are possibly undesirable and contributions to the training fund an unfair penalization.

- Financial guarantees posted in the prescribed amount form the corporate application to defray deportation and other costs,]

CONCLUSION
There are many additional areas that warrant comment and input regarding the Immigration Bill but I have limited my remarks to those that are of a strategic nature and that directly impact upon the ability of the Institute to conduct its work. My brief submission is therefore neither detailed nor comprehensive but hopefully will contribute to your task.
Thank you for the invitation and this opportunity.

Appendix 3:
IMMIGRATION BILL 2002
SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME AFFAIRS 23 April 2002

International Education Association of South Africa (IEASA)
With the support of the South African Universities Vice-
Chancellor's Association (SAUVCA) and the Committee of
Technikon Principals (CTP)

Submission to be presented by Professor Martin West.

Background
IEASA represents International Offices of most public higher education institutions, and is recognised by both SAUVCA and CTP. IEASA has consulted SAUVCA and CIP in formulating these proposals, which enjoy their support.

General
In general the public higher education institutions welcome the draft Immigration Bill as it applies to the education sector. We believe that the process of issuing study permits for students, and work permits for staff, will be streamlined and improved by this Bill. We accept the responsibilities placed on Higher Education Institutions in these matters.

We warn, however, that the Regulations which are ultimately framed in terms of this Bill will be critical to its success, and to implementing the spirit of the Bill. IEASA would welcome the opportunity to work with the Department in assisting in the framing of appropriate Regulations as they will affect the education sector.

Proposed Amendments

There are a few changes that we believe will greatly improve this Bill as it applies to the higher education institutions, as they will simplify and clarify certain areas.

1. We propose that foreign academic visitors engaged in research or on sabbatical leave should be able to paid for limited work undertaken which is incidental to the primary purpose of their visit.

This proposal is in line with international practice, where international academic visitors may be paid for casual lectures, seminars and the like. We do not believe it is sensible to require a work permit for such limited purposes.

To give effect to this, we propose the following:

Addition to Definitions:

"foreign academic visitor' means a foreigner not intending to apply for a formal study programme at a public higher education institution, but who would be conducting research, or visiting, at the invitation of the higher education institution to give guest lectures or seminars; and notwithstanding the provisions of this Act such a foreigner may be paid for work incidental to his or her visit by a public higher education institution.

Section 4(1)(ii) would then read:
(aa) academic sabbaticals as foreign academic visitors
(cc) research as foreign academic visitors

2. We propose that holders of student permits should be allowed to undertake limited part-time work, to be prescribed by regulation.

This is again in line with best international practice where foreign students can undertake limited work. This is important for many foreign students from developing countries, notably from Africa, who sometimes struggle to meet incidental living expenses. Part-time work is also usually a part of a student's general development. It also allows foreign students to integrate better into their host society, and increases international understanding.

To give effect to this, we propose the following:

Delete "6 (3) A student permit does not entitle the holder to conduct work, provided that -" and replace with:

Section 6 (3) (a) A student permit holder may undertake part-time work not to exceed the prescribed period if the permit holder is attending a higher education institution. Such work may include temporary full-time work during the academic vacation periods.

The existing Sections 6 (3) (a) and (b) would then be re-numbered accordingly as Sections 6 (3) (b) and (c)

"Study permit" referred to in the existing 6 (3) (b) should read "student permit" for consistency.

3. We recommend that there be a clear definition of practical training as envisaged in Section 6 (3).

To give effect to this, we propose the following:

Addition to Definitions:

practical training" means training including remunerated training towards academic and career development certified as such by the Registrar of a public higher education institution.

4. We propose that it is unnecessary for minor students at public higher education institutions to require local guardians.

We believe that Section 6 (1) (a) (v) is intended to apply to learners in the school sector and not to those enrolled in higher education institutions.

To give effect to this, we propose the following amendment:

Section 6 (1) (a) (v) in the case of a minor, other than a minor enrolled at a higher education institution, provides the name of the person in South Africa acting as the foreigner's guardian or who has accepted to act as such.

5. We propose that the Bill state that holders of relatives permits may be permitted to study.

To give effect to this, we propose the following amendment:

Addition to Section 11
(3) The holder of a relatives permit who is a minor may study as a learner.
(4) The holder of a relatives permit may study on a full or part-time basis.

6. We propose that Section 12 could be improved in three ways: (a) by broadening the unnecessarily restrictive requirement of certification by a chartered accountant, (b) by allowing work permit holders at higher education institutions to study, and (c) by clarifying that work permit holders may hold student permits, to complement the existing Section 6 (3) (b).

Fully qualified accountants in South Africa may not have the chartered accountant qualification as specified in the Bill. We believe that all fully-qualified accountants should be able to discharge the function envisaged in the Bill.

Staff members at higher education institutions often improve their qualifications through study in various ways. We believe that it is appropriate that this be permitted without further issuing of student permits.

Section 3 allows student permit holders to hold work permits concurrently; we suggest that the reverse also be allowed for consistency.

To give effect to these proposals, we propose the following amendment:

Addition to Section 12
(1 )(a) Replace chartered accountant with an accountant registered by a recognized statutory body
(6) The holder of a work permit at a higher education institution may study on a full or part-time basis.
(7)The holder of a work permit may concurrently hold a student permit.

The Definition of "Chartered Accountant' would therefore fall away.

7. We believe that Section 42 (2) and Section 43 (2) (although we understand the latter not to apply to higher education institutions) are inappropriate, and our advice is that they are unlikely to survive Constitutional Court scrutiny. We propose that they be scrapped.

Amendment to Sections 42 and 43: Delete Sub-section (2) in
both sections

8. We regard Section 45 as far too broadly-framed, and propose that the Bill should list specific offences only.

As currently framed one could be prosecuted under this Section for knowingly helping an illegal foreigner across a street. More seriously, it could be illegal to provide legal advice to an illegal foreigner or to offer emergency medical assistance.

We propose the following amendment to limit the offences to the list specified in the Bill:

Amendment to Section 45: delete including but not limited to, and replace with in.

SUMMARY OF AMENDMENTS PROPOSED BY IEASA

Addition to Definitions
"practical training" means training including remunerated training towards academic and career development certified as such by the Registrar of a public higher education institution.

"foreign academic visitor' means a foreigner not intending to apply for a formal study programme at a public higher education institution, but who would be conducting research, or visiting, at the invitation of the higher education institution to give guest lectures or seminars; and notwithstanding the provisions of this Act such a foreigner may be paid for work incidental to his or her visit by a public higher education institution.

Deletion of Definitions:
Delete "chartered accountant".

Amendment to Section 4(1)(ii):
(aa) academic sabbaticals as foreign academic visitors
(cc) research as foreign academic visitors

Amendment to Section 6 (1) (a) (v):
6 (1) (a) (v) in the case of a minor, other than a minor enrolled at a higher education institution, provides the name of the person in South Africa acting as the foreigner's guardian or who has accepted to act as such.

Amendment to Section 6 (3):
Delete: "6 (3) A student permit does not entitle the holder to conduct work, provided that -" and replace with:

Section 6 (3) (a) A student permit holder may undertake part-time work not to exceed the prescribed period if the permit holder is attending a higher education institution. Such work may include temporary full-time work during the academic vacation periods.

The existing Sections 6 (3) (a) and (b) would then be re-numbered accordingly as Sections 6 (3) (b) and (c)

Addition to Section 11:
(3) The holder of a relatives permit who is a minor may study as a learner.
(4) The holder of a relatives permit may study on a full or part-time basis.

Amendment to Section 12
(1 )(a) Replace chartered accountant with an accountant registered by a
recognized statutory body.

(6) The holder of a work permit at a higher education institution may study on a full or part-time basis.

(7) The holder of a work permit may concurrently hold a student permit.

Deletion from Section 42:
Scrap sub-section (2).

Deletion from Section 43:
Scrap sub-section (2).

Amendment to Section 45: delete including but not limited to, and replace with in.

Appendix 4:

IMMIGRATION BILL, 2002: SUMMARY OF UNHCR SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME AFFAIRS

23 APRIL 2002
Presented by Ms. Bemma Donkoh, Representative, UNHCR Branch Office for South Africa

Introduction:
Honourable Chair, Honourable Members of the Portfolio Committee on Home Affairs, Distinguished Ladies and Gentlemen:
Please allow me to introduce myself. My name is Bemma Donkoh. I am the Representative, in South Africa (based in Pretoria) of the United Nations High Commissioner for Refugees (UNHCR).

On behalf of the UNHCR, the refugee agency of the United Nations, I thank the National Assembly Portfolio Committee for granting me today’s audience, in addition to the written representations that my Office, along with other interested institutions, has been invited to address to the Committee.

THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)
The UNHCR welcomes the opportunity to present its views on aspects of the Bill that bear on the process by which refugees are identified and recognised as foreigners in need of and deserving protection, and on the status they are able to enjoy in South Africa. UNHCR’s standing as an “interested party” is self-evident -- being based on the global mandate it has been given by the United Nations. UNHCR’s mandate is to provide international protection to refugees and to seek durable solutions to their problems. In South Africa, our strategy includes, but is not limited to, the promotion of fair and efficient asylum procedures as well as the dissemination of international protection standards, including UNHCR policy positions. In 1996, South Africa bound itself to the principles contained in the 1951 UN Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa. The 1951 Refugee Convention requires our organization to discharge supervisory responsibilities in respect of how the international legal rights contained in that Convention are given effect by the contracting States.
UNHCR supported the Green Paper on International Migration (1997) position that legislation to give effect to South Africa’s international law obligations towards refugees should be separate from immigration legislation. This recommendation was supported by all stakeholders in recognition of the specific situation and special needs of refugees who are forced to leave their countries to avoid persecution or harm, and are, as such, covered by international human rights law.

UNHCR supported the view set out in the Green Paper that refugee status determination should be the domain of an expert authority with a reasonable assurance of independence from both the executive and political branches of government. In 1998, UNHCR participated in the White Paper Task Team, which drafted the White Paper and Refugee Bill, subsequently passed as the Refugees Act 130 of 1998.

UNHCR is concerned that certain aspects of the Immigration Bill that touch upon refugee related issues may undermine the principles contained in international refugee and human rights law, and the Green Paper, White Paper and Refugees Act of 1998. At the same time, we are gratified to note the specific mention in the Bill of the prevention of xenophobia, which continues to result in the discriminatory treatment of refugees in South Africa and often poses a threat to their personal security and well–being, as being among the objectives of the Department of Home Affairs. These issues are set out as follows:

1. THE REFUGEE APPEALS BOARD TO BE REPLACED BY THE IMMIGRATION COURT

As stated above, this will remove the separation between refugee protection and migration control. The functions of the Immigration Courts will be much broader than those of the Refugee Appeals Board. The fact that an administrative appeal will be replaced with judicial procedures could make the procedure less accessible and affordable to refugees. UNHCR would, however, promote either administrative or judicial procedures if these were shown to guarantee due process and natural justice in the refugee status determination procedure. We support the idea of affording a review-mechanism comprising a corps of professional and competent personnel appropriately trained and orientated to appreciate the proper distinctions to be made between refugee law and the need for it to be implemented independent of general migration control interests. Therefore, subject to the final resolution of this matter, we would – should lawmakers opt for the Immigration Court system – recommend a phased implementation of the Bill’s provisions with respect to the Immigration Courts’ assumption of jurisdiction over the review of refugee status decisions. This would ensure a period of transition enabling the gaining by adjudicators of the necessary expertise and capacity. UNHCR is prepared to train magistrates in refugee law and international protection of refugees, and to disseminate country-of-origin information.

2. ADMINISTRATIVE SUBORDINATION OF THE REFUGEES ACT
The Immigration Bill proposes changes to the administration of refugee protection in that Clause 55(1) provides that ‘notwithstanding any other law’ a new organizational structure for the Department will be prescribed within three months. There is no special provision for refugee protection administration within Clause 55(2). The subordination of refugee protection in the restructuring may well have negative implications bearing in mind the Green Paper and White Paper proposals concerning the independence of the refugee determination process.

We propose the following addition to Clause 55(2):
(e) need to restructure the Department to effectively and independently fulfill the functions set out in the Refugees Act and to provide training of staff in terms of section 39 of the Refugees Act.

3. THE ASYLUM SEEKER PERMIT
This is a further example of where the Immigration Bill purports to override the Refugees Act in a manner that poses interpretive problems from the point of view of refugee protection. Clause 18 of the Immigration Bill provides that ‘the Department may issue an asylum seeker permit to a refugee subject to the Refugees Act, 1998, and any prescribed term and condition.’ This is confusing because the Refugees Act defines a ‘refugee’ as ‘any person who has been granted asylum in terms of this Act’. This presents a lacuna with regard to the status of asylum seekers. Section 22 of the Refugees Act makes provision for asylum seeker permits to persons who apply for asylum, as well as for an identity document (in sections 27(d) and 30) for refugees whose status has been recognized. Furthermore, the Immigration Bill suggests that an asylum seeker permit may be issued subject to conditions in addition to those prescribed by the Refugees Act.

It is important to note that the Immigration Bill provides that the Department may issue various permits. The Refugees Act was passed ‘to give effect within the Republic of South Africa to the relevant international legal instruments, principles and standards relating to refugees…’ and its Preamble states that South Africa has ‘assumed certain obligations to receive and treat in its territory refugees in accordance with the standards and principles established in international law’. Therefore, section 22(1) of the Refugees Act states that the ‘Refugee Reception Officer must… issue to the applicant an asylum seeker permit…’ Likewise, section 27(d) of the same Act says plainly that a refugee ‘is entitled to an identity document referred to in section 30’, which section in turn states that ‘A refugee must be issued with an identity document’.

We propose that Clause 18 of the Bill be deleted or that it be substituted by the following:

18. (1) The Department must, pending the outcome of an application for asylum in terms of section 21 of the Refugees Act, issue to an applicant an asylum seeker permit in the form prescribed by the Refugees Act allowing the applicant to sojourn in the Republic temporarily, subject to any conditions determined in terms of the Refugees Act and which are not in conflict with the Constitution or international law and are endorsed by a Refugee Reception Officer on the permit.
A refugee must be issued with an identity document…(repeat the wording of section 30 of the Refugees Act).
A refugee may apply for a travel document in the prescribed manner.

4. ILLEGAL FOREIGNERS
UNHCR is concerned that a refugee, as defined under the Refugees Act, who enters South Africa in contravention of the Immigration Bill would be considered an “illegal foreigner”. In fact, the detention and deportation of such a person would constitute a violation of Article 31 of the UN Convention which stipulates that ‘Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life and freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ Moreover, section 2 of the Refugees Act, based on Articles 32 and 33 of the Refugee Convention, provides for a general prohibition of refusal of entry, expulsion, extradition or return to other countries in certain circumstances, namely, “where (a) [the refugee] may be subjected to persecution on account of ….race, religion, nationality, political opinion, or membership of a particular social group; or (b) his or her life, physical safety or freedom would be threatened ……” This provision is based on the principle of non-refoulement, which underpins refugee protection and is recognised, universally, as a fundamental norm of international human rights law.

A provision also likely to violate international law, due to its apparently discriminatory and arbitrary nature, is Clause 23(1)(c) of the Immigration Bill, under ‘Exclusions and Exemptions’, which includes ‘citizens of certain foreign countries prescribed from time to time’ as ‘prohibited persons’ who do not qualify for temporary or permanent residence permits.

We propose an addition to Clause 37 of the Immigration Bill to read:

37(11) No person may be refused entry into the Republic, expelled, extradited, deported or refouled from the Republic in violation of the Republic’s international agreements.

In this regard, we note ,with concern that the use throughout the Bill of the term “illegal foreigner” may misguide the public as well as the officials charged with the Bill’s implementation to overlook the need for acknowledgement of the fact that a refugee, even though he/she may have entered or be present without authorisation, should not be summarily deported, or otherwise penalised, solely on that ground. Hence, we recommend revision of the Bill’s language to lend clarity on this issue, thus ensuring consistency with the Refugee Act and avoiding blurring of the distinction between “refugees” and other undocumented foreigners. To this end, we propose the use of the term “undocumented economic migrants” in substitution for illegal foreigners.

5. XENOPHOBIA
UNHCR heartily supports the Bill’s references to the prevention of xenophobia as being among the Department’s objectives. We note, however, that this noble and necessary function could be rendered impracticable due to its potential conflict with the exercise of other powers by the Department that envisage mobilising the community to participate in the application of the immigration law.

UNHCR’s stands ready, as in the past, to lend its assistance towards training and supporting the Department of Home Affairs to enable it to:

“promote a human-rights based culture in both government and civil society in respect of migration control” (ref. Clause 29 (a));
“administer refugee protection and related legislation” (ref. Clause 29(l) and
“educate communities and organs of civil society on the rights of foreigners, illegal foreigners and refugees, and conduct other activities to prevent xenophobia” ( ref. Clause 29 (e) ).

SUMMARY OF SUGGESTED AMENDMENTS
1. An addition to section 55(2)

need to restructure the Department to effectively and independently fulfill the functions set out in the Refugees Act and to provide training of staff in terms of section 39 of the Refugees Act.

2. The deletion of section 18 in its entirety or the substitution of the following:

18 (1) The Department must, pending the outcome of an application for asylum in terms of section 21 of the Refugees Act, issue to an applicant an asylum seeker permit in the form prescribed by the Refugees Act allowing the applicant to sojourn in the Republic temporarily, subject to any conditions determined in terms of the Refugees Act and which are not in conflict with the Constitution or international law and are endorsed by a Refugee Reception Officer on the permit.
A refugee must be issued with an identity document…(repeat the wording of section 30 of the Refugees Act)
A refugee may apply for a travel document in the prescribed manner.

3. An addition to section 37 to read:

37(11) No person may be refused entry into the Republic, expelled, extradited, deported or refouled from the Republic in violation of the Republic’s international agreements.

4. Removal of the term “illegal foreigner” employed throughout the Bill:

Substitution with the term “undocumented economic migrant”.
Bemma Donkoh
Representative, UNHRC Branch Office in South Africa

Appendix 5:

Submission of Comments on the Immigration Bill No 22439 of 29 June 2001
Portfolio Committee for the Department of Home Affairs

By Emma Algotsson,
Lawyers for Human Rights
[email protected]


1. Introduction
Lawyers for Human Rights would like to draw your attention to our immediate concerns where the proposed Immigration Bill falls short in the standards of human rights protection. In our presentation today, we will concentrate around two different themes:
Responsible Immigration Policy
Migration Control

2. Responsible Migration Policy
The development of South Africa’s immigration policy has been informed by a crusade as to encourage economic growth and employment; one of its aims has been to attract professional skills to the country through new user-friendly immigration legislation. And in may ways, the Bill, despite its enormous administrative side-effects, will make it easier for certain categories of migrants to seek employment in South Africa.

However, while skilled immigration has been regarded as economically beneficial to South Africa, a widespread belief that the numbers of non-citizens in the country has escalated dramatically in the last decade and the socio-economic burden of this apparent influx of non-citizens has created a political panic.

South Africa’s immigration policy for the last decade has been informed by a common perception that the numbers of non-citizens in the country has escalated dramatically during the last decade and that a large number of these non-citizens are illegally in the country, and therefore undesirable. The debate around the Immigration Bill has not escaped from this misconception.

The official figures of illegal immigrants used by the DHA have in recent years been heavily contested. The Human Sciences Research Council has pointed out that there are no accurate numbers available to establish the number of illegal immigrants in the country.[1] The lack of reliable data makes it impossible to put a precise figure on the number of illegal migrants since by definition they are not officially recorded.

Instead of reducing the number of illegal migrants in South Africa by addressing the needs of these migrants, the drafters of the Immigration Bill have chosen to restore the principle of deterring and preventing people from illegally migrating to South Africa.

3. Migration Control
The theme that seems to dominate the Immigration Bill is need to deter and prevent people from illegally migrating to South Africa. We note for example that the Bill includes a number of provisions that criminalizes certain interactions with foreigners. A whole section is dedicated to duties and obligations of South African citizens and more than a whole page of the Bill is dedicated to offences if you fail to fulfil any of these obligations.

We find section 45 regarding aiding and abetting especially problematic, where illegal foreigners should be denied all kind of protection in South Africa by for example the police, which violate their Constitutional right to safety and security. We therefore suggest that the wordings in section 45 should be specific and deal only with training, transactions, and contracts etc, as already specified in the Bill.

We also note with concern that the Department of Home Affairs wants to create “a climate of cooperation with other organs of the state…to encourage them to take responsibility” in the implementation of the Bill and further “create a climate of cooperation with community organs of civil society…to encourage them to cooperate with the Department”. I am here referring to the objectives as set out in section 29 of the Bill. These intentions, we argue could only reflect the Department’s vision to encourage communities and organs of the state to become ”informers” by detecting and reporting on suspected illegal foreigners. The provisions also risk, as highlighted by the Johannesburg Child Welfare, to turn all government structures, including those responsible for justice, welfare and education into “snitch” organisations.

Lawyers for Human Rights has previously warned that “the migration policy itself can potentially contribute to xenophobia as much as the government’s enforcement of it”[2] and recommends that the role of reporting and investigation of non-nationals should be left to the Department and the newly introduced investigation unit which is assumed to be able to manage the situation with more sensitivity and professionalism.

Lawyers for Human Rights further notes that the Department of Home Affairs intends to continue its wearisome efforts to apprehend, detain and repatriate persons entering South Africa illegally in a similar manner which has exposed concerns in a number of reports: Lawyers for Human Rights and the South African Human Rights Commission has continuously reported on inadequate procedures for the apprehension of illegal foreigners and inhuman treatment and indignity of persons held in detention under the current legislation.[3] It is with great concern that we note that the Immigration Bill recognises few of the recommendations made by the South African Human Rights Commission in this regard.

However, the dilemma with the suggested system is not only one of human rights protection. Research has for example indicated that the current system of arresting, detaining and deporting illegal immigrants is extremely costly and ineffective. The Department of Home Affairs last year deported on average 350 illegal foreigners per week, many of those from Lindela Repatriation centre. The financial implications for the Department for these activities reached millions last year. The efficiency of this system must be questioned when observers, including the Department of Home Affairs itself, have confirmed that a significant number of deportees are back in South Africa before the trains have returned to Johannesburg.[4]

Without going into details of the inefficiency with the proposed system, I would like to comment in more in detail on the proposed Immigration Bill and on the section relating to the arrest and detention of illegal migrants.

I would initially like to make a comment on the structures of the Bill: the current version does not link the section for the identification, arrest and detention of illegal migrants accurately. Duplication of some provisions and the exclusion of others make the Bill both incomplete and very difficult to implement. Take for example the wordings in the text. In sections 30(g) and 36(5)(b), the Bill gives that Department authority to apprehend illegal foreigners, while in section 37(1), an immigration officer may arrest an illegal foreigner and in section 44, an officer may take such person into custody. The Bill provies for no definition of these words. It is also unclear in which order and based on what criteria the different steps of identifying, ”arresting” and detaining illegal migrants should be taking place.

Looking at these steps one by on, we have identified the following difficulties with the proposed Bill:

3.1. Identification
In order to approach a person to ask for his or her identification, the approaching officer must have been given authority by law to do such thing. The Identification Act currently provides for the authority to request proof of identity. However, the Act applies only to South African Citizens and lawful and permanent residents and not to illegal migrants. Moreover, the Act does not place a duty on the person to carry identification documents. Neither does it offer any authority for the police to arrest persons without identification.

Section 44(1) of the proposed Immigration Bill states that “any person shall identify himself or herself as a citizen or resident, or as a foreigner when so requested” by a police or immigration officer. The Bill thus gives a great discretion to the police or immigration officer as to whom to approach for identification. It also deprives the person of their right to move without identification.

The proposed new legislation should not be taken lightly and could be compared with the so-called influx control system which imposed immediate arrest and deportation of all Africans who travelled beyond the confines of their “homeland” were required to be in the possession of a pass, and inability to produce the pass on demand.

Compared with legislation in for example the UK, who has a reasonable grounds requirement for requesting identification, as did the Aliens Control Act, the new legislation might be seen as a violation on the person’s freedom and liberty. Mere suspicion does not constitute reasonable grounds. However, there has been an international trend, especially after September 11^th to infringe these right based on a national security argument. It seems like South Africa has been following these developments.

3.2. Reasonable grounds and onus of proof
The question is what powers are given to the officer if the person cannot identify him or her self when so requested. Remember that a number of South African citizens are not in the possession of an identification document. Some may also have lost their documents or simply left them at home. The proposed Immigration Bill is unclear in its languages of what steps an officer must take to ensure that a person is in fact illegally in the country. According to section 44 of the Bill, “if on reasonable grounds such officer is not satisfied that such person is entitled to be in the republic, such officer may take such person into custody”.

It is here unclear whether the intention with this formulation is to keep the burden of proof with the alleged illegal foreigner or if the officer will have to prove that on reasonable grounds such person is illegally in the country.

Based on research at Lindela Repatriation Centre we would like to argue that the burden of proof should be on the arresting officer. This is the principle of being perceived as innocent unless otherwise proved guilty. The Human Rights Commission reported in December 2000[5] that arrested persons deliberately were prevented from providing accurate documents, valid identity documents were destroyed and investigation processes were delayed by ineffective investigation methods and poor communication between different departments. As a consequence, many South African citizens and person with valid documentations were apprehended and detained while their citizenship was confirmed.

It is however more likely that the intension of the drafters of the Immigration Bill was to put the burden of proof on the arrested person. An essential addition to the presented legislation would then be to introduce a system that will compel arresting officers to state the reasonable grounds for their arrest, similarly as the new Passport Control Instructions for the arrest and detention of illegal aliens.[6]

The guidelines that came into effect as from January 2002 compel police officers to provide the DHA with documented proof of the reasons for arrest including evidence that the suspected illegal immigrant has been given an opportunity to prove his or her legal status in the country and prevent the police from arresting and detaining foreigners simply for having a particular physical appearance, not speaking any of the main national languages, or for not carrying identity documents.

The guidelines also provide provisions for improved communication between the police and the DHA. Previously, suspected illegal immigrants were handed over by the police to the immigration authorities without any documentation or record of the apprehension. As a result, persons whom the police has no reasonable grounds to suspect were unlawfully in the country and whom in addition had valid permits, or even South African citizens were detained for several days while their right to be in SA was confirmed by the Department of Home Affairs.

3.3. Arrest
After establishing that there are reasonable grounds to believe that the person in fact is an illegal foreigner, the Bill gives the officer power to take such person into custody, or arrest if you so wish.

I would first like to take the opportunity to comment on the fact that no section of the Bill mentions the level of force that might be used against a reasonable suspected illegal foreigner. It is interesting to note that section 36 on the powers of the newly established investigation unit include clear provisions for the powers to be used to enter upon and search premises, I quote: the officer “may use such force as may be reasonable necessary to overcome resistance to such entry or search”. Moreover, it is specified that such enter and search must be conducted with strict decency and order, including “(a) a person’s right to, respect for and the protection of his or her dignity, (b) the right of a person to freedom and security; and (c) the right of a person to his personal privacy.” It is not difficult to see that the drafters of the Immigration Bill has been given more thought and careful protection to the right to someone’s property that of the freedom and liberty of a suspected illegal foreigner.

The Criminal Procedures Act places procedural safeguards on arrests. For instance the amount of force that may be used when arresting the person is regulated in terms of section 49. Similar procedures should be included in the Bill, with the Criminal Procedures Acts as a model for minimum standards.

Secondly, the officer may, according to section 44 take this reasonable suspected illegal foreigner into custody without a warrant and to detain him without a warrant. Again, I would like to refer to section 36(5) which states that an officer must obtain a warrant (later referred to a warrant by a court) to enter or search any premises in pursuance of the Bill. Moreover, the warrant of arrest will be obtained by a court “only if it appears to the magistrate from information on oath that there are reasonable grounds” for the “enter or search”.

Even more worrying is the fact that an illegal foreigner may be detained for 30 days without a warrant from a court. It seems like the drafter of the Bill have tried to get around this dilemma by introducing section 37(1)(b), which states that a person may request to have his or her detention, pending deportation confirmed by a warrant of a court within 48 hour. We argue that this provision is not sufficient and that a detention cannot be warranted by an administrative decision by an immigration officer.

I would also like to take the opportunity to note that the Department of Home Affairs so far have not been able to fulfil the 30 days detention requirement as set out by section 55(5) of the Aliens Control Act. Up to today we are not aware of any High Court application by the Department of Home Affairs where they have extended the length of detention at Lindela repatriation facility. At the same time, we have discovered 753 cases of prolonged detention at Lindela between March and August 2001.

3.4. Investigation procedures
Section 7 of the Aliens Control Act provides for certain steps that immigration officers must take when investigating whether a person is a prohibited person or not. If the result of the investigation is that a person is found to be a prohibited person, he or she is declared a prohibited person. The Immigration Bill does not provide any such requirements. Reasonable suspected illegal foreigners who have been arrested are treated as de facto illegal foreigners (ie detained for up to 30 days awaiting deportation) without ever having been declared so. Consequently, there is not decision by the Department of Home Affairs that could be challenged by the illegal foreigner. We also suggest that the decision to declare a person illegal is made in writing and that provisions are made for person to receive a copy of the decision.

3.5. Detention
According to section 37(1), an illegal foreigner may be detained “in a manner and at a place under the control and administration of the Department determined by the Director General”. However, in section 44, a person may only be detained in a prescribed manner, which means that the standards of detention must be provided for by regulations.

In December 2000, the South African Human Rights Commission published a report that highlighted the poor conditions of detention at Lindela repatriation centre. The findings confirmed evidence of inhuman treatment and indignity of person held at the facility in terms of the constitutional standards of detention. The majority of complaints by inmates centred around a lack of inadequate nutrition, irregular or inadequate medial care and systematic forced interruption of sleep, general poor living conditions, access to information, assault and the treatment of minors.

The problem could be explained by the failure in specifying the minimum standards of detention under the Aliens Control Act. For as long as the system fails to include clear detention criteria and standards and the precise degree to which they should be adhered to, the public will none the wiser as to whether conditions are inadequate or humane.

LHR recommends that the Immigration Bill shall include a set of minimum standards for the detention of undocumented migrants with paid attention to section 32 (1&2) of the Constitution[7] and International legislation[8] on detention standards. These minimum standards should include provisions for conditions of detention such as size and conditions of cells, adequate diet, exercise, health, separation of administrative detainees from criminal detainees, women from men and children from adults.

The latter is of special importance as children has Constitutional rights not to be detained except as a measure of last resort, in which case, the child may be detained only for the shortest appropriate period of time, and has the right to be “(i) kept separate from detained persons under the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age.” Experience has shown that these provisions are not always respected[9] which motivates for the inclusion of these provisions in the Immigration Bill.

We further understand that the Department intends to continue to contract private persons to perform its functions to detain and escort illegal immigrants, as set out section 29(l) of the Bill. The outsourcing of detention to a private company is a sensitive issue and raises questions of accountability and legal responsibility. The Bill however, does not provide any required legal framework for the management by the private enterprise. Neither does it impose any minimum standards of treatment or any quantifiable performance areas on the private contractor, leaving the Department of Home Affairs with nothing to keep the contractor accountable. Surprisingly, the agreement between the Department of Home Affairs and the private contractor for Lindela repatriation centre does neither contain any significant measures of ensuring the fair treatment of detainees and proper administration of the centre.

This problem became obvious during the recent event at Lindela when a detainee was murdered at the centre by security guards of the private contractor. When investigating the matter, the South African Human Rights Commission found that there was no clear division of responsibility at the facility between the Department of Home Affairs and the private contractor, which resulted in the event being insufficiently investigated and reported on. Media reports also indicated that the Department of Home Affairs disclaimed responsibility of the facility and removed their responsibility for the event.

It is clear that the question of privatisation of a state function such as detention of illegal foreigners must be revised to include clear provisions for the contracting out facilities including specifications regarding the design, financing, management, operation and governing of these facilities. It is also important that provisions are made, similar to those in the Correctional Services Act, that regulates the duties and restrictions applying to the contractors and the powers to monitor and investigate contracted out facilities.

3.6. Inspectorate system
Proper enforcement of the recommended minimum standards requires an independent body with clearly defined powers and duties to inquire into specific incidents as well as monitoring the general conditions of detention. The Immigration Bill provides no statutory limitations or immediate oversight of immigration detention facilities. The problem has two aspects. Firstly, the Department of Home Affairs has no apparent statutory obligation to review, monitor or report on activities at the facilities. Equally, public confidence in the concept of a privately operated detention centre for illegal foreigners relies on a mechanism of external control of the facility.

Although the establishment of an independent monitoring system to safeguard the rights of detained migrants is crucial it is often difficult to make it work in practice. Judge Inspector for Prison’s, Judge Fagan has previously welcomed the idea of broaden the is mandate to include the monitoring of immigration detention facilities. The benefit of this model is that is integrates a new watchdog aspect into an established and independent structure.

3.7. Deportation
Looking at the issue of deportation one cannot avoid to notice the confusion between section 35 (1) that states that any illegal foreigners shall depart, unless authorised by the Department to remain and section 35(2) which states that any illegal foreigner shall be deported. Also, according to section 29(2)(i), the objective of the Department is to deport illegal foreigners who are unwilling to leave the Republic voluntarily while in section 37, an officer shall, irrespectively of whether such foreigner is arrested, deport him or her or cause him or her to be deported. Except for being extremely confusing, the Bill does not give any clear indications for how and when a person may be deported. It is for example unclear what are the principles for voluntary repatriation. It is also unclear as to in what circumstances the department will issue general entry permits according to section 4(3) for illegal foreigners.

Appendix 6:
National Consortium for Refugee Affairs
Submission of the Portfolio Committee on Home Affairs on the Immigration Bill No 22439 of 29 June 2001.

23 April 2002

Introduction
The National Consortium on Refugee Affairs is an umbrella organization providing a platform for human rights organizations, refugee groups, service providers and other institutions . The work of the consortium has always represented a fundamental belief in the universal principles of human rights and justice for all. In the light of these principles the NCRA has identified the rights of refugees and asylum seekers to be of critical importance, believing that the truest test of a country's commitment to human rights is its ability to protect the most vulnerable.

The NCRA is concerned that the Immigration Bill falls seriously shod of the standards of human rights protection afforded to non-nationals in this country. In this presentation I will not go into detail of matters already raised by Lawyers for Human Rights and the SA Human Rights Commission. The presentation will, however highlight some aspects of the Bill that will have an impact on the protection of refugees and asylum seekers in South Africa. Our comments draw heavily on earlier comments made by Prof. Jonathan Klaaren, on behalf of the NCRA.

This memorandum conducts a preliminary analysis of the relationship between the draft Immigration Bill and the Refugees Act 130 of 1998. The Immigration Bill amends the Refugees Act 130 of 1998 (the Bill continues to refer to the Act as the Refugee Act). The Refugees Act was passed specifically by Parliament in 1998 to provide a specific regime for refugee protection and to give effect to South Africa's obligations in terms of international instruments. This followed on from the view of the Green Paper on International Migration was that there should be separate legislation for refugee protection and related issues and for international migration policy issues.

In a number of places, the Immigration Bill interacts significantly with the Refugees Bill. For instance, s 60(1) of the Bill read with Schedule 3 makes several significant amendments to the Refugees Act. Before examining those changes, it may be worthwhile to note at least one change that was mooted earlier in the drafting process that have been subsequently dropped. No longer does the Immigration Bill purport to prevail over the Refugees Act in the event of an inconsistency (although the Bill is the later-in-time statute). This feature of earlier drafts of the Immigration Bill, the insertation of a conflicts clause into the Refugees Act, has been dropped.

1. Administrative Subordination of Refugees Act (Issues related to the transfer of ministerial responsibility need further examination)
One of the significant changes made by the Immigration Bill to refugee protection is at the level of administration. Section 55(1) provides that notwithstanding any other law", a new organizational structure for the Department will be prescribed within nine months. Section 55(2) lists factors to be taken into account in this process. The administrative and institutional structure of the Refugees Act (presently part of the migration section of the Department of Home Affairs) would be subordinate to this organisational restructuring. There is no special place or consideration for refugee protection administration within 5 55(2).

In order to ensure that concerns of independence are taken into account in refugee determination processes, it may be necessary to amend s 55(2) to provide special consideration for refugee protection administration. For instance, s 55(2) could have an additional clause:

"(e) the need to restructure the Department to effectively and in dependently fulfil the functions set out in the Refugees Act and to provide training of staff in terms of 539 of the Refugees Act"

Additionally, in an area closely related to refugee protection, the Immigration Bill should contain a non-refoulement and general human rights protection provision in order to avoid problems such as the Constitutional Court judgment in the recent case of Mahomed v Minister of Home Affairs. An additional clause could be added to section 37 to read 37(11):

"No person may be deported or refouled from the Republic in violation of the Republic's international agreements."

Without such changes to the Bill, it is arguable that the Immigration Bill will essentially undo the separation of refugee protection from migration control that was achieved by the Refugees Act. As presently drafted, the Bill essentially subsumes refugee protection within the general framework of migration control and administration. Section 29(1 )(l) states that one of the "objectives and functions of migration control" is to "administer refugee protection and related legislation''.

2. Potential Elimination of the Asylum Seeker Permit of the Refugees Act and Further Override of the Refugees Act
The chapter in the Immigration Bill entitled Temporary Residence has a section entitled "Asylum" . This section is apparently additional to the Refugees Act but does not appear to be drafted with the Refugees Act closely in mind. Immigration Bill s 18 provides:

The Department may issue an asylum permit to a refugee subject to the Refugee [sic] Act, 1998 and any prescribed term and condition.

The Immigration Bill s 18 poses (at least) two specific interpretive problems from the point of view of refugee protection. First, asylum seeker permits are put in jeopardy. The Refugees Act allows for the issuing of an asylum seeker permit in terms of section 22(1) and the issuing of formal written recognition of refugee status as well as an identity document to a refugee (section 27(d) and section 30). In the Immigration Bill, the term "refugee" is defined to "have the meaning defined in the Refugee [sic] Act, 1998" in section 1(xxxiv). Since the Refugees Act defines a "refugee" as a person who has been granted asylum (Refugees Act section 1(xv)) and since the Immigration Bill allows for the issuance of a permit only to such a "refugee" , the Immigration Bill apparently is providing for a permit for such recognized refugee, formalizing the formal written recognition.

Even if the Immigration Bill is not interpreted to have eliminated the category of the asylum seeker permit by not referring to it, those asylum seeker permits under s 22 of the Refugees Act are not given status in terms of the Immigration Bill. Asylum seeker permits are not then temporary residence permits as defined in s 3 of the Immigration Bill. Thus, holders of asylum seeker permits effectively are not catered for in the Immigration Bill. Assuming that they have entered in contravention of the Immigration Bill, they would be considered illegal foreigners. (The problems of the Immigration Bill s 18 are mirrored elsewhere in the draft Bill. For instance, the section providing for the transition from existing permits caters for the Aliens Control Act but not for the Refugees Act (s 58). This leaves the status of S 22 permits issued under the Refugees Act uncertain.)

The Immigration Bill needs thus to be amended to provide a status for asylum seekers in terms of the Refugees Act.

Second, the prescribed terms and conditions for the s18 Asylum permit in the Immigration Bill are apparently to be made in terms of the Immigration Bill, rather than the Refugees Act. Section 18's phrase". . . and any prescribed term and condition" would seem to allow the Department the power to prescribe any term and condition for the granting of an asylum permit additional to those in the Refugees Act. The term "prescribe" refers to "regulations" which are "general rules adopted by the Minister after consultation with the Board in terms of this Act and published" (section 1(xxx) and (xxxiii)). This means that the human rights and protection objects and purposes of the Refugees Act may not be available to challenge regulations governing the issue of permits to recognized refugees as potentially being ultra vires the Immigration Bill.

Indeed, all migration control regulations -- even those made in terms of 5 38 of the Refugees Act -- will be made through the usual migration control regulation process (e.g. after consultation with the Immigration Advisory Board). (Schedule 3 makes clear that the Refugees Act regulations will be made in terms of the Immigration Advisory Board process.) The Immigration Advisory Board is established by s 28 and consists of the Minister of Home Affairs, one representative of the Department of Trade and Industry, one representative of the Department of Labour, one representative of the Department of Tourism, one representative of the Department of Safety and Security, the Department of Finance, one representative of the South African Revenue Service, the Department of Education, the Department of Foreign Affairs, the Director General, up to eight persons from bodies chosen by the Minister, and four individual expert appointees by the Minister. Regulations are to be made through a notice and comment procedure governed by s 33, with the Board in an apparently advisory role (see also section 1(xxxiii) (regulations are adopted after consultation with the Board). The powers of the Board include the power to advise the Minister with respect to regulations (s 32(1 )(a)) and to request the Minister to reconsider intended regulations or to consider the need to adopt, repeal or amend regulations (s 32(3)).

It is submitted that the Immigration Advisory Board should include at least one person or institutional representative with refugee protection expertise or a refugee protection mandate. (An alternative or additional suggestion would be the establishment of a statutorily defined Refugee Commissioner within the Department.) If not, the Immigration Bill would result in substituting the judgment of the Minister and the Immigration Advisory Board for the judgment of Parliament as expressed in the Refugees Act, particularly in the crucial regulation-making phase.

3. Elimination of the Refugees Act Board of Appeals in favour of Immigration Courts
Most significantly, the Refugee Appeal Board established by section 12 of the Refugees Act is eliminated by the Immigration Bill. The sections relating to it (12,13, 14 and 26) are deleted. Sections referring to it are appropriately amended (15,16,17, 18,19, and 20).

Instead of the Board of Appeals, s40 of the Immigration Bill sets up Immigration Courts. For a transitional period of time, these Immigration Courts consist essentially of Magistrate's Courts (section 57(1)). After that time, these Immigration Courts may be headed by magistrates, additional magistrates or assistant magistrates as well as judges (section 57(2)(a)). The judges of the Immigration Courts will preside assisted by one or more assistants from the pool of qualified officials of the Department (chosen by the judge) or from inside or outside the Public Service (if chosen by the Minister) (section 40(4). The broad model for these Immigration Courts are the Magistrates' Courts (section 40(6)), but the Bill allows for significant deviations from the standards of legal qualifications and experience required in the usual Magistrates' Courts.

The functions placed on the Court by the amended section 26 of the Refugees Act are somewhat more expansive than the functions placed on the Appeal Board by the present section 26. In addition to the right of appeal, the Immigration Courts would have the power to hear and determine any question of law in terms of the Refugees Act (section 60(1) read with schedule 3). (The Immigration Court is given essentially equivalent powers in terms of section 34(2)(c) ("suspend, reverse, or modify" ) to the remedial powers of the Refugee Appeal Board to "confirm, set aside, or substitute any decision" of a Refugee Status Determination Officer (section 26(2)). This makes the lack of legal qualifications and expertise for the personnel of the Immigration Courts of particular concern.

There are two additional areas of concern beyond the institutional capacity and independence of the Immigration Courts. First, while the Immigration Bill does provide for an appeal from a decision of the Department to the Immigration Court (section 34(2)(c), there are significant procedural obstacles to the exercise of this appeal. The explicit right of a rejected applicant to lodge an appeal directly with the Board of Appeals from the decision of a Refugee Status Determination Officer granted by the Refugees Act (section 26(1)) is eliminated. Section 34(2) is not clear as to whether the internal appeals to the Director-General and the Minister need to be exhausted before appeal is made to the Immigration Court. Section 34(2) should be amended to reinstate the right to appeal of asylum seekers.

Second, the requirement that legal representation be allowed upon request of the applicant is eliminated (section 26(4)). This matter would apparently be decided according to the rules of the Magistrates' Court except that section 40(6) apparently allows the Immigration Advisory Board to prescribe provisions that overrule these rules. This would give the Immigration Board the authority to make regulations denying legal representation in front of the Immigration Courts. Again, there is the danger that refugee protection concerns would give way to general migration administration matters. The right to legal representation should be reinstated.

In summary, we are concerned that the courts will not have the necessary sensitivity and understanding of the protection needs of refugees and asylum seekers. There is also the concern that the distinction between refugees and other categories of migrants will be ignored. So, in terms of the implementation of the Bill we support the idea that, as a transitional arrangement, the Refugee Appeal Board is kept in operation until the Immigration Courts have developed the capacity to hear asylum matters.

4. Right of Permanent Residence for Refugees to be Decided by Regulation of the Immigration Board
There is one clear place where the Immigration Bill trumps the Refugees Act at the legislative level. With respect to the grant of permanent residence to refugees, section 22(4) specifically asserts the priority of the Immigration Bill and its regulations over the Refugees Act. It provides that the Department may issue a permanent residence permit to

"a foreigner of good and sound character... who is a refugee referred to in section 27(c) of the Refugee [sic] Act, 1 998, subject to any prescribed requirement."

Strictly speaking, Immigration Bill s 22(4) does not derogate from the rights enjoyed by refugees in terms of the Refugees Act. Section 27(c) of the Refugees Act provides only that a refugee

"is entitled to apply [for a permanent residence permit] after five years' continuous residence in the Republic from the date on which he or she was granted asylum, if the Standing Committee certifies that he or she will remain a refugee indefinitely"

The Immigration Bill s 22(4) thus adopts the requirement of the Refugees Act that at least five years must pass for eligibility for permanent residence. What the Immigration Bill does not do is to place refugees in the preferred "direct residence" route to permanent residence (s 21) where five years temporary residence leads to permanent residence.

Moreover, the Immigration Bill is silent on the content of the regulations. These regulations might include further time periods potentially necessary for refugees to obtain permanent residence. These regulations could also include additional eligibility requirements and procedures. There are no legislative guidelines given to determine the shape of those requirements. (This lack of guidelines may bring this provision of the Immigration Bill into constitutional difficulties in terms of the Dawood case.) The issue of the requirements for permanent residence for refugees demonstrates further the points made above about the regulation making process of the Immigration Bill.

Finally, I would like to highlight some of the issues that were raised by LHR and the SAHRC in regards to the arrest, detention and deportation of illegal foreigners. The failure to provide would have negative ramifications on all foreigners in the country.

Arrest and detention
Section 44 of the Bill allows for the arrest and detention of illegal foreigners. This provision does not recognise the prohibition of refusal of entry, expulsion and deportation of asylum seekers who may not be in possession of the required documentation in terms of Section 2 of the Refugees Act. This Act further states in S 21(4) asylum seekers may not be penalised as a result of their unlawful entry or
presence in the Republic. This provision gives effect to the principle of non-refoulement and Art 31 of the UN Convention on Refugees that states that States shall not impose penalties on account of illegal entry or presence in the country.

We further like to support LHR's recommendation include minimum standards for immigration detention and the introduction of a independent monitoring system of al detention facilities, similar to the structure under the Correctional Services Act.