Immigration Bill: deliberations

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
25 April 2002
IMMIGRATION BILL: DELIBERATIONS

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

Documents handed out:
Immigration Bill [B79 - 2001]

SUMMARY
The Committee continued deliberating from Clause 8. The Department was asked to draft a number of amendments. Firstly, to draft an amendment in line with the proposal made by SARS. Clause 9 has to be drafted so that the Department has sole responsibility for issuing permits to crewmen. The Department were also asked to draft definitions for 'crew' and 'vessel'. There has been no final decision on how the Clause will look and it will be revisited.

The Committee deliberated on the provisions relating to permits. With respect to the relatives permit in Clause 11, the Department agreed to reconsider the definition of "spouse" in the Bill. Concern was raised around chartered accountants having to provide clearance certificates, as it was felt that people with limited resources would not afford to go to a chartered accountant.
In regard to the retired persons permit, it was agreed that the age limitation of 65 years in the Clause be deleted.

The discussion on Clause 16 highlighted whether the Department of Home Affairs alone should be authorised to grant the corporate permit, or whether the Departments of Trade and Industry and Labour should be included in the process, as well as whether the entire clause should be deleted.

Concerns raised with Clause 17 focussed on the definition and implications of including the phrase "exceptional circumstances", as well as the restriction of "25 years".
Under Clause 18 the Committee discussed whether this clause affords sufficient protection to asylum seekers, as opposed to the corresponding provisions in the Refugees Act.

MINUTES
Clause 8: Investor and self-employed person's permit
Mr Smith (IFP) referred to Clause 8(4) that obliges a holder of an investor permit to renew the certification in Clause 8(1)(c) within 24 months of it being issued and thereafter every two years. The Member asked why the permit can be renewed for an indefinite period.

Adv Lambinon replied that persons establish businesses and invest and come to South Africa in an interrupted manner.

Mr Ambrosini added that there are temporary and permanent permits. The person would come to SA for three months then leave and would do so as required by his business or investment. Such persons might not want a permanent residence for tax purposes.

Adv Lambinon said that a person has the right to choose to be in SA on a temporary or permanent basis and if the person chooses temporary then Clause 8(4) applies.

Mr Skhosana (ANC) reminded the Committee that SARS wanted an additional sub clause in 8(4) where they require that the issuing of the permits provided for in Clauses 8,12 and 13 should be conditional on registration with SARS for income tax purposes.

Mr Ambrosini replied that the matter had been discussed with SARS and it had also been discussed in Cabinet. The Department decided not to take it on board because Home Affairs cannot be expected to enforce SARS responsibilities. This should be in SARS legislation. It is an issue of principle.

Mr Mokoena said all that SARS is interested in is the tax net.

Mr Ambrosini said that it was not so easy. There are individuals and different kinds of businesses that must all fulfil different requirements to register with SARS.

Ms Jacobus was not convinced by the argument. All that all that is required from Home Affairs is that before a person is allowed to enter they must ensure that a certificate from SARS is provided.

Mr Waters (DP) asked if it was possible that a person can be registered with SARS before even getting a permit to be in South Africa. He found it unlikely that anybody can simply just register with SARS. He suggested that Home Affairs simply send a list of everyone who received permits under Clause 8 to SARS every month.

Adv Lambinon said that the Committee is now discussing a big problem. The function of Home Affairs affects all South Africans and all foreigners coming to South Africa. All other Departments also have an effect on people. If all Departments find a gap in Home Affairs legislation then it will be much thicker than the Bill at present. There is no way that Home Affairs can accommodate this type of request that SARS is making if all Departments request the same.

Mr Mokoena said the reply from Adv Lambinon was unacceptable especially since Ms Jacobus has pointed out that SARS is not asking much.

Mr Tolo (ANC) raised a point of order and said that the Department is taking part in the discussion of the Committee. The Department must wait until they are asked a question since the Committee is considering the Bill.

Mr Mokoena agreed and sustained the point of order. He told the Department not to put up their hands and wait until called upon.

Mr Kalako (ANC) commented that the additional clause asked for by SARS would help to eliminate corrupt business and to make sure that investments are real.

Mr Sikakane (ANC) asked whether there is data available to establish who has come into South Africa to establish a business without having immigration supplying the information.

Mr Skhosana said that SARS had problems collecting taxes from ordinary citizens and it was important to let foreigners know that they are in the tax system and obliged to pay tax.

Mr Smith commented that everyone agrees that all must pay tax. The question is how to achieve this. He added that a person first intends to invest and therefore gets a permit. The permit comes before the investment and therefore one cannot register for tax purposes before investing.

Mr Grobler (NNP) also said that everyone agrees and wanted the Department to come back to the Committee with a proposal to accommodate the Committee's inputs and the inputs of SARS.

Ms Jacobus concluded by saying that the Committee does want it in and that it was only a question of drafting. The proposed Clause of SARS was also there to work from.

Clause 9: Crewman permit
Prince Zulu (IFP) asked why the holder of a crewmen permit could not work but a holder of a investor permit could.

Ms Jacobus explained that they were different categories of people. A crewmen would leave South Africa after a short while but the holder of an investor permit would remain in South Africa.

Mr Pretorius (NNP) wanted to know from the Department why owners of vessels can issue permits. In Clause 6 it was agreed that it was the responsibility of the Department to issue permits.

Mr Tolo (ANC) added that since the Committee had taken that decision in Clause 6, it should apply to Clause 9 as well.

Mr Skhosana said that there was no definition of crewmen and one should be provided.

Ms Mars (IFP) was concerned about the practicality of having the Department issue all the permits. She used the example of a ship that is in port for a day. It would be very problematic for Home Affairs to deal with individual crewmen. She further pointed out that Clause 9(1)(b)(i)-(iii) had safeguards.

Mr Waters (DP) agreed that not all vessels would qualify in that it had to be registered with Home Affairs and provide security.

Ms Jacobus suggested that the word 'crew' should be used instead of 'crewmen' because it is gender neutral and politically correct. The Committee agreed that only the Department has the authority to issue permits. The captain and the pilot must merely facilitate the process.

Mr Kalako asked how the Department would know what vessels are coming in and out of South Africa and wanted to know what good standing meant.

Mr Smith wanted clarity on how Clause 9 and Clause 25 related to each other.

Mr Ambrosini replied that ships and aircraft have a large number of crew. There are hundreds of flights every day. The crew is sometimes chosen or replaced the night before. The crew come from different countries and sometimes they do not even need a visa to be in South Africa. At the airport there is a separate gate for crew. They are different from foreigners who must have their passports stamped and then can go anywhere in the country. Crew cannot move around freely. They often just stay in the hotel and then return. Home Affairs cannot manage all of this. Airlines and Liners are registered with Home Affairs. Liner companies own many ships. Relationships exist between Home Affairs and the owners. An unreliable liner with one boat will not be registered. He concluded by saying that a special exemption was needed and that it was international practice.

Clause 25(b) exempts crew from military vessels. The captain of the vessel is responsible for the crew. This is the way things had been done traditionally and advised the committee that they could apply their minds on the issue.

In response to the ruling of the Chair Mr Ambrosini said that the Department has views that it wants to share with the Committee at various points but was unsure of how to do so.

The Committee agreed that the Department could share their views but should not assume the task of processing the Bill.

Mr Smith followed up and said that Clause 25(b) does not refer to military vessel.

Mr Ambrosini replied that public vessel from foreign state referred to a government vessel. He used Airforce One as an example of a vessel that would be exempt.

Ms Jacobus suggested that there should be a definition of 'vessel' for clarity.

Mr Mokoena drew the discussion on Clause 9 to a close.

Afternoon Session
After returning from lunch Ms Jacobus recapped and said that the Department had to provide drafts defining a crew, vessel and also amending the Clause so that it is the responsibility of the department to issue permits. None of the issues are agreed to and will be revisited. Discussion moved to Clause 10.

Clause 10: Medical treatment permit
Mr Smith (IFP) asked if a costing has been done for a foreigner who wishes to come to South Africa for treatment.
Mr Kalako (ANC) asked what is the practice for allowing a person who wishes to obtain medical treatment is South Africa to enter the country.

Dr Ambrosini replied that a medical treatment permit applies to medical treatment that is going to be obtained for longer than a three-month period. If a person were going to receive treatment for less than three months, he would apply for a general entry permit. At present a person will have to apply for a medical treatment permit irrespective of the length of stay. When a medical treatment permit is requested, the Department relies on information and assessments that are made by a medical institution. He said that the Department is not in the business of developing or determining medical policies. The Department does not know how many foreign patients are allowed in the country for treatment at any given time, but what they do need to know is if a public hospital in terms of the Department of Health's policy admits the foreigner. He said that the Government heavily subsidizes this treatment of foreigners.

Mr Sikakane (ANC) said that, as he understands the procedure, if a person in Mozambique sustains fractures to his skull and needs to be air-lifted to Wentworth Hospital then there is no question of him applying for a permit.

Dr Ambrosini said that there are extreme situations and if a person gets off a plane in a coma his passport cannot be stamped. These situations are covered by exceptions. The Immigration officer would deal with this special case.

Mr Lambinon said that the situation is a practical arrangement between themselves and the Department of Health. Such a patient would land in the country with a letter, and the Immigration Officer will allow the person through, and the necessary documents are thereafter completed in the hospital.

Ms Jacobus asked why then must the "registrar office of an institution" issue the permit.

Clause 16: Corporate Permit
Mr W M Skhosana (ANC) requested clarity on Subclause 5(b), as he was under the impression that states alone may enter into the sort of agreements provided for under this Subclause, and not the Department of Home Affairs.

Dr Ambrosini responded that this is a difficult situation because this Bill attempts to bridge a major gap between legality and reality, and it is expected that the process will evolve after negotiating. There are however, currently thousands of miners employed within the Republic because of bilateral agreements that have been concluded with other states in this regard. The Department does not want to involve itself in these arrangements as only the Departments of Labour, Foreign Affairs and the State President are the relevant parties here. The role of the Department in this process is solely to identify these workers, register the amount entering the Republic and track their location. The aim of the Bill in this regard is thus to convert the status of these illegal foreign workers to a legal one.

Mr M K Lekgoro (ANC) agreed with Mr Skhosana and stated further that it cannot be implied in the Immigration Bill that corporations are able to authorise these permits, so that consistency with the preceding clauses in the Bill may be maintained. As mentioned earlier there could very well be institutions, like mining houses, that may desire to employ thousands of workers at a time, and this would cause an "administrative nightmare" to the Department. A Clause is needed here to cater for such eventualities, and therefore the corporate permit under Clause 16 has to be issued by the Department alone.

Dr Ambrosini replied that every Department can enter into such agreements by law, and thus Subclause 5(b) is merely an enabling provision.

Mr Waters stated that Clause 16 seems to provide that the Department, in consultation with the three other Departments mentioned in that provision, may only allow a stipulated or limited amount of foreign workers into the Republic via the corporate permit. It would "cause trouble for the economy" if unrestricted amounts of such workers were allowed entry into the Republic, and this would also ward off foreign investment. These corporations have to show that they are bringing skilled workers into the Republic so that the national economy is not prejudiced, and this is the aim of Clause 16. It seeks to ensure that skilled workers are brought into the country that would benefit the economy.

The Chair was of the opinion that the entire Clause 16 should properly fall within the jurisdiction of the Department of Trade and Industry, in the same way that the diplomatic permit under Clause 5 of the Bill falls within the exclusive jurisdiction of the Department of Foreign Affairs. Furthermore, corporations do not fall within the domain of the Department, and these agreements are drafted in a detailed manner which suggests that they should rather be dealt with by those people who deal with such issues and agreements on a daily basis: the Department of Trade and Industry. In fact, the very reason for inviting that Department to address the Committee previously was to discuss this matter with them. Also, it has to be decided whether the Department actually has the competence to include this sort of permit in the Bill.

Ms I Mars (IFP) requested the Chair to explain his position further, as she was under the impression that the Department alone is responsible for the issuing of permits regulating the entry of foreigners into the Republic.

The Chair agreed with Ms Mars that the Department has authority regarding the entry of foreigners, but the Department of Trade and Industry is responsible for the registration of companies within the parameters of the laws applicable to that Department. Furthermore, if these two issues are not separated, this Committee could effectively be passing contradictory legislation.

Ms A Van Wyk suggested that the Chair's concerns seem to be covered by Clauses 16(2) and (5), and stated that it is important here that this Committee agrees on the criteria to be determined by the Departments of Trade and Industry, Labour and Minerals and Energy in granting the Clause 16 permit. But at the end of the day the Department would be responsible for the movement of those people.

Mr G Grobler (DP) agreed with Ms Van Wyk as far as the movement of such persons is concerned, and stated that this is the same reason for the disagreement on the diplomatic permit highlighted during the previous session. The Department alone must issue these permits as it would benefit South Africans to employ these skilled foreigners. It would also stimulate foreign investment and business growth as South Africa is now part of the global scene. Consensus thus has to be reached so that Clause 16 may be retained in the Bill.

Mr P Smith requested clarity on the influence of the Department of Trade and Industry on the granting of Clause 16 permits, as Subclauses 5 and 6 do not seem to offer the Department much discretion in the process.

Ms Jacobus, the co-Chair, stated that arguments have now been made both for the deletion and retention of Clause 16.

The Chair stated that the problem here is that a lacuna has been created because those Departments that are affected by Clause 16 have not voiced their opinions on it to this committee during the public hearings, and thus their positions on Clause 16 are uncertain.

Mr Lambinon replied that the Department did consult with other relevant departments, and such consultation was "extensive" and "all inclusive". The Clause 16 permit was really introduced at the insistence of the Department of Trade and Industry so that a special category for such workers might be included in the Bill. The reason for its incorporation is that South Africa is currently facing a "desperate situation" in which the normal trend is for foreign workers to go through the onerous process of applying for a work permit, and it was decided that including the Clause 16 permit would fast-track the legal entry of such workers into the Republic.

The co-Chair agreed that Clause 16 should be retained, but the clause may need to be amended later. The Department should be responsible for the issue of the corporate permit.

Clause 17: Exchange permit
The Chair suggested that the word "programme" should be inserted between "exchange permit" in the title of the clause.

Dr Ambrosini had no trouble with effecting the Chair's proposed amendment.

The Chair also called for the first "by" in Subclause (b)(iii) to be replaced with "be".

Dr Ambrosini agreed.

The Chair requested clarity on the phrase "extraordinary circumstances" in Subclause (b)(iii), as well as on the "magic" with the inclusion of "25 years" at the beginning of Subclause (b).

Dr Ambrosini replied to the question regarding the "extraordinary circumstances" by stating that international experience has shown that this phrase should not be defined "up front", but evaluated on a case-by-case basis. In foreign jurisdictions such grounds include whether the person is ill or married.

With regard to the question on the inclusion of "25 years", this is not a "magical age" but is rather the age used for exchange permits throughout the Commonwealth and America.

The Chair responded that this Committee has, within the last six months, passed a law setting the age of maturity for South African youth at eighteen, and this Bill cannot therefore fix a second threshold at twenty five. It should be set at eighteen, as the Department could face Constitutional challenges from youth on this threshold.

The co-Chair stated that Clause 17 deals specifically with the youth and young people, defined as "up to 25 years of age". This Clause is therefore not extending the requisite age here, but is merely making provision for that specific age group. The clause does seem to cater for them.

Ms Van Wyk contended that "25" is not the minimum age, but the "ceiling" or cut-off age.

Dr Ambrosini stated that many submissions have been received calling for this age to be extended because there seems to be an increase in the amount of persons taking the "gap year" after completing their studies, during which they travel overseas. Others have also argued that the limit should remain at 25 as there are members of that age group that wish to contribute to the economy and begin stable employment. Thus the age of 25 has been included as a compromise between these two competing viewpoints. It also has to be remembered that this clause is not dealing with kids, but rather with young people that can take care of themselves.

Mr Waters agreed with the co-Chair. Dr Ambrosini is requested to explain whether he said that married persons would not be granted an exchange permit under "extraordinary circumstances" in Subclause (b)(iii), as this could be challenged as unconstitutional.

Dr Ambrosini replied that this matter has been adjudicated upon in the United States, and these persons accept the conditions of these permits before they actually conclude these agreements. Most importantly it has to be remembered by Members that the rights guaranteed under the South African Constitution do not apply to foreigners within the Republic, nor do they have any legal entitlement or legitimate expectation in South African law.

Mr Waters responded that this cannot be accepted these persons cannot foresee the fact that they could get married once in the country, and if indeed they are genuinely married there seems to be no valid reason for then sending them away.

Mr Skhosana agreed with Mr Waters, and recommended that this Subclause either be reconsidered or scrapped completely.

Mr Smith said that while he understands the example illustrated by Mr Waters. It has to be remembered that legislation deals with principles which, in this particular subclause, provides that the persons specified will not be granted an exchange permit under this subclause unless extraordinary circumstances to the contrary can be shown. This subclause should thus remain because it stipulates the principle that the person can stay, but if the person is not allowed to stay must show "exceptional circumstances" to show otherwise. The person is therefore covered either way.

The co-Chair agreed, and contended that these "exceptional circumstances" could indeed be marital status, as argued by Mr Waters.

Ms Van Wyk added that it is possible to alter one's status under the other permits in the Bill, and the same should thus apply under Clause 17.

Advocate Malatje agreed with the co-Chair, and stated that there seems to be no further problems with this clause.

Mr L Tolo (ANC) suggested that Subclause (a)(i) authorises the Minister of Home Affairs to delegate the power to issue the exchange permit to an organ of State, but this seems inconsistent with the preceding clauses of the Bill in which the Department alone could do this.

The co-Chair agreed that it should be the sole responsibility of the Department.

Mr Smith suggested that the word "or" should be inserted between Subclause (b)(i)(aa) and (bb), as there seems to be a tendency to read it as an "and".

Dr Ambrosini agreed.

Clause 18: Asylum
Mr N Zulu (IFP) inquired whether "and" should be replaced with "under".

Mr Tolo stated that during the public hearings The United Nations High Commissioner for Refugees (UNHCR) submission argued that the asylum seekers permit is already adequately covered by the Refugees Act, whereas the Bill only provides for an asylum permit. This, they contend, seems to suggest that this Bill does away with the asylum seekers permit. Clarity is thus requested on the manner in which the Department plans to accommodate asylum seekers and the asylum seekers permit.

Mr Skhosana contended that there is already a Refugee Act in place, and the UNHCR proposed amendments should be inserted into this clause.

Dr Ambrosini replied that, as mentioned by the Department during the previous session of this committee, this matter is "a storm in a teacup", as the reference to asylum seeker in this Bill serves merely as a cross-reference to the provisions in the Refugee Act. The only amendment that has to be made to this clause is that the phrase "or asylum seeker" be inserted after "refugee" in this clause. It would be "useless" to include the Refugee Act provisions in this clause, as this would result in two separate laws with identical provisions, which would succeed only in adding unnecessary confusion.

Furthermore, the asylum seekers would also contravene the Refugee Act if they enter the Republic under the Refugee Act unless they specifically apply for the asylum seekers permit, because only the asylum seekers permit cures this illegality. The harsh reality is that 70% of investigations into these asylum seekers permits result in the finding that no exceptional circumstances exist that warrant the authorities granting them entry into the Republic. They are thus sent back to their native countries. The concerns raised by Members are thus an "over-reaction" to a simple mistake made by the Department, which is rectified by the amendment mentioned above.

Mr Smith requested the State Law Advisor to advise this Committee on whether the UNHCR proposals should be "stuck in" here. Secondly, should the phrase "term and conditions" not be in the plural form, so as to read "terms and conditions"?

Mr Otto Kellner, the State Law Advisor, replied stated that the Committee should consider the second point in the UNHCR submission that Clause 18 be deleted.

The co-Chair suggested that Members themselves research the Refugee Act, devise an opinion on this matter and report back to this Committee with feasible amendments.

Clause 19: Cross-border and transit passes
Mr Smith reminded Members that one of the submissions received during the public hearings called for this clause to be made more "SADC friendly".

The co-Chair replied that this is effected under "with the same effect as a multiple admission general entry permit". It was noted that there was general agreement on this clause.

The meeting was adjourned.