Immigration Bill: deliberations

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
26 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 their deliberations from Clause 20 and ended off with Clause 28. Many of the Clauses need to be revisited for finalisation.

MINUTES
Clause 20 - Permanent residence
There were no comments.

Clause 21 - Direct residence
Mr Mokoena asked why there was a need for direct residence.

Dr Ambrosini replied that in Clause 21 the foreigner has the right to get permanent residence. In Clause 22 there is no such right but strong reasons exist to grant permanent residence. A degree of discretion is applied.

Clause 22 - Grounds for residence
Mr Mokoena asked if grounds for residence should not rather precede Clause 21 & 22.

Mr Waters (DP) referred to Clause 22(a)(iv) and asked if the maximum age of 21 is going to be retained whereby a child of permanent resident may also get a permanent residents permit. He raised the question against the background of many persons being over the age of 21 and still studying.

Dr Ambrosini replied that a person can be a dependant for a long time. If under 21 the permit applies even after the age of 21. If a person is over 21 a student permit can be obtained.

Clause 23 - Prohibited persons
Mr Smith (IFP) said that the Clause suggested that as long as a warrant was issued against a person that person would be prohibited even if the person was found to be innocent. He asked if it would not be better to have the crimes listed in 23(1)(b) in regulation so that there is not a fixed list.

Dr Ambrosini explained that in Clause 23(b) a presumption of innocence still applies because the person may not have been convicted. It could lead to constitutional problems if the crimes are in regulation because then the immigration board could add crimes.

Mr Waters asked if the Schedule 1 and 2 that lists the crimes at the back of the Bill cannot be made to apply.

Ms Van Wyk (UDM) suggested that the Clause be linked to the crimes listed in schedule 1 of the Criminal Procedure Act.

Dr Ambrosini said that all the crimes are covered in Clause 24(g). The difference between Clause 23 and 24 is that in 23 the person is automatically prohibited. All crimes cannot be put in this category because the presumption of innocence is not applied because of the repugnancy of the crime.

Adv Malatje further added that Clause 23 is automatic and under Clause 24 a person must be declared an undesirable.

Mr Skhosana (ANC) said that he was satisfied with the explanation. He referred to 23(c) that states that all the citizens of a foreign country could be declared prohibited. He asked what this meant.

Dr Ambrosini advised that in the event of war all the citizens of the country we are at war with could be prohibited.

Mr Grobler (NNP) reminded the Committee that IDASA had submitted that this provision was contrary to the Bill of Rights especially since any department official could declare a countries citizens prohibited.

Dr Ambrosini said that it is not true that any official can do this. The Minister in consultation with other Ministers and the immigration advisory board would take the decision. He added that the Clause could be used for national emergencies.

Mr Kalako (ANC) agreed with the explanation but nevertheless wanted an example of a national emergency besides war because at the end of the day all the citizens of a country are being prohibited.

Mr Sikakane added that the President should take the decision.

Dr Ambrosini used the example of international sanctions and said that there has to be a provision in the law that enables Home Affairs to deny access. He added that government does things through the Ministers. The Ministers go through cabinet. The issue being discussed does not fall under the line functions of the President.

Mr Mokoena asked if the Clause must be retained or expanded on for more clarity.

Mr Smith said that if a disease breaks out in a country it would be necessary to prohibit the citizens from entering South Africa. Often the symptoms are not immediate. This could be an argument to retain the Clause.

Mr Mokoena asked if there was agreement that the Clause should be retained. None of the members objected to the retention of the Clause.

Clause 24 - Undesirable persons
Ms Van Wyk asked what happens to persons once they are declared undesirable.

Mr Kellner (State Law Advisor) said that the law should spell out what happens to the person who has been declared an undesirable.

Dr Mokoena repeated and asked what happens once a person is declared undesirable.

Ms Mars (IFP) replied the logical deduction was that the permit is withdrawn and then the person is an illegal foreigner and must leave. She asked if this deduction was correct.

Dr Ambrosini said that an addendum is being prepared that will shed light on the matter. His explanation confirmed Ms Mars' deduction but persons are not always deported.

Mr Mokoena flagged the Clause until the addendum arrived.

Clause 25 - Exemptions
Clause 25(2)(c) authorises the Minister or the DG to allow a person to enter at a place other than a port of entry. Mr Mokoena asked why is it an either/or situation. Either the Minister must give the permission or the DG.

Dr Ambrosini replied that the Clause intends to shield the Minister should there be litigation.

Mr Mokoena continued and said that there should be no confusion as to who makes the decision.

Mr Pretorius (NNP) said that it should just be the Minister who makes the decision.

Ms Van Wyk agreed that it should read Minister because the Minister is ultimately responsible.

It was agreed that the reference to DG be deleted.

Clause 26 - Withdrawal of Permits
Mr Grobler referred to Clause 26(b). It allows the permit to be withdrawn when a person has within 20 years been convicted of three crimes. He said that the three crimes should not be linked to 20 years.

Mr Waters agreed. He said that if it is a serious crime the permit must be withdrawn immediately. He said that the conviction rate in South Africa is 8% so to get three convictions someone has to probably commit 30 crimes. He asked if the Clause can be linked to the crimes listed in Schedule 1 and 2 of the Bill. If there is one conviction for a Schedule 1 offence then the permit is withdrawn and if there are two convictions for a Schedule 2 offence then the permit is withdrawn.

Mr Smith referred to sub Clause (a) that states that if a person is convicted of a Schedule 1 offence within four years of the issuing of the permit then it can be withdrawn. He said that treason and child stealing is listed. A person could be convicted of treason if fighting an oppressive regime etc. And it could be that a parent has taken his own child. He was of the opinion that more thought could be given to these offences.

Dr Ambrosini said that child stealing was a willful breaking of a custody order and that there was no strong departmental view on the matter.
In respect of the other concerns he said that there are constitutional considerations. The withdrawal of the permit is not a sanction for the crime. The jail sentence is the sanction and the withdrawal is an additional sanction. A citizen goes to jail but a resident goes to jail and thereafter must pack up and leave the country. For this reasons the extreme crimes are referred to, to justify the different treatment.

Ms Jacobus suggested that Clause 26 must come after grounds for residence and should therefore be Clause 23 in the new draft.

The Committee agreed that 20 years in Clause 26(b) must be taken out.

Clause 27-The Department
Ms Jacobus said that Clause 27 refers to general powers and functions and it is not necessary to include it in the Bill.

Adv Malatje replied that anything that is done must be done in terms of the law and therefore the provision that allows the Minister to delegate is necessary.

Mr Mokoena asked the State Law Adviser if it was normal practice to have these provisions in the middle of the Bill.

Mr Kellner replied that 27(1) and 27(2) is not important but that 27(3) was necessary and must be included somewhere. Referring to the heading of the section he said that it looks important but these matters are normally dealt with either at the beginning or the end of the Bill.

Mr Mokoena said that it seems that 27(1) and (2) can be deleted but (3) must remain.

Ms Jacobus suggested that the section heading 'Objectives and Structures of Migration Control' should read immigration control because migration was much broader than what the Bill is dealing with.

Mr Sikakane said that there was a provision in the PFMA that enabled Ministers to delegate and asked if it was necessary to have another provision in this bill.

Mr Smith said that migration is the correct word because a person on a temporary permit is not an immigrant.

Mr Mokoena disagreed and said that if anyone is from anther country and comes to South Africa then the person is an immigrant.

Dr Ambrosini said that there is no general law in the PFMA that empowers the Minister to delegate. The Department produces millions of administrative actions that is moving into a field that is justiciable and reviewable. The provisions are shielding the Minister and therefore at various places the provisions in the Bill refer to the Department. He said that the bill is doing something unusual. Because the Minister always has the final responsibility 27(1) and (2) ensures the channel of political accountability.

Mr Mokoena said that there was consensus that 27(1) is needed but has to be moved to the beginning of the bill. Sub (2) & (3) must be deleted.

Mr Grobler saw no problem with leaving the Clause as is. There is no major difference if it is left in.

Mr Pretorius said that IDASA had said that Clause 27(2) is unnecessary because it takes the independence and authority away from the DG. The Clause allows the Minister to instruct the DG how to exercise his powers conferred in terms of this Bill.

Ms Van Wyk agreed that the DG is paid a huge salary and it is not correct that somebody else tells him how to do his job.

Dr Ambrosini said that 27(1) does not effect the way the Department is structured it is merely a way of decentralising functions.

Ms Jacobus replied that 27(2) had nothing to do with the decentralisation of functions.

Dr Ambrosini replied that he had said nothing about 27(2). On Clause 27(2) he said that only the Minister has executive power. But there has been a bad habit in drafting legislation by all Departments that gives the executive power to the DG but it is the Minister that is accountable.

The Committee did not agree with the argument and Mr Mokoena said that it was clear that Clause 27(2) had to go.

Clause 28 - Immigration Advisory Board (IAB)
Mr Pretorius asked what would the cost be of the IAB.

Adv. Lambinon replied that the cost has not yet been determined. Only persons from outside government will have to be paid but this cost will be offset by the falling away of the old immigration selection committees.

Mr Pretorius referred to Clause 6 and asked what happens after the disestablishment of the board.

Dr Ambrosini said that the board is large and it could not perform its statutory function. This could be a problem and therefore the Minister is given the power to disestablish the board. After the one is disestablished a new one will have to be formed. He suggested that the Minister should be obliged to establish a new board within X amount of days.

Ms Van Wyk said that it was a statutory board and had a problem with the fact that the Minister could simply decide to disestablish it. She also wanted the legislation to be specific as to who is on the board.

Adv Kellner advised that this was normally done by Parliament.

Mr Kalaka (ANC) asked what is the mechanism of actually constituting the board. He wanted to know if the invitation to apply is gazetted or does the Minister just provide the names.

Members were concerned with the fact that the Minister can request bodies to nominate persons because it was still not clear who would be on the board.

Dr Ambrosini replied that the Minister does make the appointment but in actual fact it is really the Cabinet. No Minister would make appointments in isolation and there are standard procedures that are followed, such as publishing the positions in the Gazette. He clarified that there are ten government representatives on the board. Another eight will be appointed from nominations received from bodies requested by the Minister. All agreed that business and labour should be on the board but that it was impossible to be specific because of so many role players. The Department was open to suggestions.

Another Member (ANC) said that the chair of the board should not be the Minister.

Mr Pretorius agreed because the independence of the board would be affected if the Minister is the chair.

Mr Mokeona summarised the discussion thus far. The reference to bodies being requested by the Minister to nominate persons is not clear. The DG and the Minister must not chair the board. The procedure for appointment must be clearly stated. Something has to be worked out on the disestablishment and what will happen once the board is disestablished.

Ms Jacobus added that the chair must be the person who calls the meeting and that it would be better if the bodies just submit names to represent them on the board. She stressed that the board must be disestablished in terms of the law and not at the whim of the Minister.

Mr Smith suggested that a procedure for the appointment for the chair must be spelt out. The board should by no means appoint its own chair.

Dr Ambrosini said that the purpose of the board is to advise the minister. It is supposed to facilitate inter departmental co ordination. It is set up so that the Minister first talks to all the stakeholders before taking a decision. If Home Affairs is taken off the board it is an absurdity.

Adv Malatje added that if the board is an advisory one then the Minister and DG must be on it. If they are not then it is an independent board.

The meeting was adjourned.