Immigration Bill: finalisation

Meeting report

SELECT COMMITTEE ON SOCIAL SERVICES
22 May 2002
IMMIGRATION BILL: VOTING

Documents handed out:
Immigration Bill [B79B-2001]
A Departmental view of the proposed reformulation of Clause 19 (1) [Appendix 1]
Proposed Amendment by the Inkatha Freedom Party [Appendix 2]

Relevant news articles:
ANC backs down on work permit quotas 21/5
http://www.bday.co.za/bday/content/direct/1,3523,1090366-6078-0,00.html

ANC withdraws Immigration Bill change 22/5
http://www.bday.co.za/bday/content/direct/1,3523,1090787-6078-0,00.html

SUMMARY
The meeting was convened in order to reach a conclusion regarding the proposed amendments to the Immigration Bill. The Committee noted the time constraints and the approaching deadline of 2 June 2002, set by the Constitutional Court, for amending the immigration laws. The amendments proposed by the ANC and supported by the IFP were withdrawn and the Bill was voted on. It will now be debated in the National Council of Provinces and be sent to the President for assent.

MINUTES
Ms L Jacobus (ANC), explained that the purpose of the Immigration Bill is to provide for the regulation of admission of persons to, their residence in, and their departure from the Republic, and matters connected therewith.

Amendments were received from ANC and IFP.

Ms Jacobus motivated why the proposed amendments should not be accepted. She explained that in view of the impending Constitutional Court deadline it would be best if no amendments are accepted. Everyone agreed in previous meetings that the Immigration Bill is flawed. However, she had been speaking to the Minister of Home Affairs, Mangosuthu Buthelezi and explained that should the Bill be passed as it is, the Minister of Home Affairs should engage in serious debate with all the various stakeholders and the Members of the Select Committee. It meant that after a short debate in the National Council of Provinces, the Bill could be sent off to the President for signature. President Thabo Mbeki would need at least five days to study the Bill before signing it. The alternative was to accept the amendments and not make the deadline, resulting in a gap in the legislation.

Ms J Koagi (ANC), said that the Select Committee should be go through each and every clause, discuss it and vote on it. This way the Minister will have something to start with.

A Member explained that they experienced problems with accepting all the proposals.

Another Member agreed with the proposal by Ms Jacobus not to accept any more amendments or they would risk a gap in the law.

A Member appealed to all parties to accept the Chairperson's proposal as they will not meet the constitutional deadline otherwise. Also it would be accepting the lesser evil.

The Chairperson asked the ANC to withdraw their amendment. The ANC agreed.
She then asked the IFP to withdraw their amendments and Ms J N Vilakazi (IFP), said that she would need time to consult with her leadership. Ms Koagi explained that the proposed amendments are not futile and that after the bill is passed the Minister will consider them again.

The Chairperson adjourned the meeting for five minutes. After it resumed, Ms J N Vilakazi (IFP) stressed her party's dissatisfaction regarding the Select Committee's agreement not to accept any more amendments. She explained that the IFP supported the amendment made by the ANC but wanted to make further amendments. She had also submitted her proposed amendment timeously and wanted the amendment to be discussed.

Ms E C Gouws (DP), emphasised to Ms J N Vilakazi (IFP), eventhough they are withdrawing their amendments, they are still standing by what they have said about the specific clauses and the proposed amendments they made thereto.

Voting
Clauses 1 to 18, Clauses 20 to 55 and Schedules 1,2 and 3 was agreed on. Clause 19 was not accepted by the IFP. However, they did welcome the ANC's proposal to delete section 19(1) and reformulate it as Clause 19(6) in the previous meeting. The IFP suggested that Clauses 19(2) and (3) be replaced by their sub clauses (see Annexures). Their amendments were not supported by the Select Committee and therefore fell away.

The Chairperson asked if there was any person who wanted to express their objections or had any comments.

Ms E C Gouws (DP), said that her party was not comfortable with Clause 19 and that they would not be involved in the restructuring of Clause 53.

Dr Mario Ambrosini, special advisor to the Minister of Home Affairs, said that the bill as amended by the ANC would be unworkable and has suggested extensive "technical and administrative" amendments.

The Chairperson concluded that the Immigration Bill would be passed after a brief debate in the National Council of Provinces, thereafter it would be sent to the President for signature.

The meeting was adjourned.

Appendix 1:
A DEPARTMENTAL VIEW ON THE PROPOSED REFORMULATION OF CLAUSE 19(1]
OF THE IMMIGRATION BILL IN THE SELECT COMMITTEE
May 22, 2002

The DHA has the proposal tabled on May 21 to delete clause 19(1] of the Immigration Bill and a new clause 1 9[6].

This proposal eliminates the need to establish a quota system as the primary method of issuing permits. The reformulated subclause [6] relegates quotas to be a mere option which Government may elect to employ when a special and identified need arises. This Option would work only in respect of only one or more categories, rather than all categories of needed foreigners.
The DHA finds no administrative or technical difficulty in this part of the proposal

The DHA wishes to focus attention on how work permits will be issued once proposal is accepted. Clauses 19(2] and [3] will apply in respect of the issuance of work permits. The DHA has submitted its administrative difficulties in carrying out the procedures set out in subclauses [2] and [3] when they were providing for an exception. If they were to become the rule, such difficulties would prove insurmountable. Therefore, the DHA suggests, that also subclauses [2] and [3] be amended.

Subclauses [2] and [3] provide for a so called "labour certification" process in which the need to employ a foreigner will need to be tested by proving that there is no national willing, ready and able to take the relevant position. This will require the DHA:
- to verify the job description of the position to ensure that its requirements have not been tailored to exclude nationals and favour the foreigner, which a chartered accountant cannot do and is not required to do in terms of subclause 19[2][d]. This requires investigating facts in the realm of the employer's business structure and needs;
- to verify the accuracy and sufficiency of the procedures employed to test that no nationals are willing, ready and available to take up the position which vary from circumstances and types of industry. In this process the DHA consults with a large number of organs of the State, organs of civil society and role-players, and does so in respect of each and every application, with consequent delays and massive administrative capacity requirements.
- to verify that the applicant has the skills and other requirements called for by the relevant position, which requires complex evaluations which involve the entities mentioned above.

This system is similar to what is provided for in the Aliens Control Act but will require much longer procedures because of the new human rights-based framework in which the DHA will need to operate. In order to ensure that each decision may sustain subsequent judicial review it will be necessary to investigate and document matters and issues more than it is done currently where a greater degree of administrative discretion is allowed. If the present system has proven to be insufficient to deal with our country's needs the one envisaged in subclause [2] and [3] is bound to be worse.

This option has not been canvassed within the DHA or with any stakeholder at any time, and has effectively placed on the table for the first time on May 21, 2002.

It will be wiser to revert to the options discussed in Cabinet, which widely canvassed with all stakeholders for years and is a tangible improvement on the Aliens Control Act.

Therefore, to complete the proposal in respect of subclauses 19(1] and [6], the DHA believes that subclauses 19(2] and [3] should be replaced by the following subclause uses, where subclause [2] below is substantially the same as the subclause [3] of the B Bill:
"(1) A work permit may be issued by the Department to a foreigner intending to conduct work, when his or her prospective employer has
(a) received certification from a chartered accountant that the terms and conditions under which he or she intends to employ such foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any, provided that
(i) a copy of such certification shall be conveyed to a prescribed office of the Department of Labour; and
(ii) such certification shall lapse if objected to for good cause by such office of the Department of Labour within 15 calendar days of its receipt;
(b) committed to --
(i) pay a fee for such a permit prescribed from time to time as a ratio of such foreigner's remuneration, to be shown in the training fund; and
(ii) notify the Department when such foreigner is no longer employed or is employed in a different capacity or role; and
(c) submitted a certification from a chartered accountant of the job description and that the position exists and is intended to be filled by such foreigner.
(2) A work permit shall lapse if, within six months of its issuance, and within every year thereafter, its holder fails to submit to the Department certification from his or her employer's chartered accountant that he or she is still employed, of the terms and conditions of his or her employment, including the job description, and that such employer has made the payments referred to in subsection (l)(b)(i).
(3) Any increase of the payments referred to in subsection (l)(b)(i) shall be effective in respect of an existing work permit only after five years and six months from when such permit was first issued, provided that subsequent work permits issued to the same foreigner shall be deemed one for purposes of this subsection.
(4) The Department may reduce or waive the payment referred to in subsection (l)(b)(i)
(a) after consultation with the Departments of Labour and of Trade and Industry, if and for as long as it is satisfied that the employer concerned has in place an adequate training programme for citizens and residents; or
(b) when so requested by the Department of Trade and Industry in respect of foreign investment."

The OHA has reviewed the letter tabled by COSATU. Obviously, the DHA does not want to enter into a policy discussion with such an important NGO. However, it must point out that such letter contains a number of items of factual inexactitude and is otherwise incorrect in law and policy. As the Committee may request or direct, the DHA is ready to address all such issues.

Appendix 2:

Inkatha Freedom Party
IQembu leNkatha Yenkululeko
PROPOSED AMENDMENT
MAY 21, 2002

The IFP endorses the need to perform all the technically and administratively required amendments presented by the Department of Home Affairs today

The IFP welcomes the ANC proposal to delete clause 19[1] and reformulate it as clause 1 9[6]. This scraps the quota system as the primary method of issuing permits and relegates quotas to an option which may or may not be used by Government when a special and identified need arises and in respect of only one or more categories rather than all categories of needed foreigners. However, the ANC proposal will now make clause 19[2] and [3] the primary method through which work permits may be issued. We have heard today from the Department that they cannot administer this method. We want to know more about such unsurmountable difficulties. However, we strongly suggest that we should not venture into new proposals at the eleventh hour which have never been canvassed and explored before as the primary method to issue work permits. This method also seems very similar to what is provided for in the Aliens Control Act which has proven insufficient to deal with our country's needs. It will be safer and wiser to revert to the options discussed in Cabinet, which widely canvassed with all stakeholders for years and is a tangible improvement on the Aliens Control Act.

Therefore, the IFP suggests that -
1. the ANC proposal in respect of the reformulation of the new clause 1 9[6] be supported; and
2. clause 1 9[2] and [3] be replaced by the following subclauses (note that subclause [2] is substantially the same)

"(1) A work permit may be issued by the Department to a foreigner intending to conduct work, when his or her prospective employer has -
(a) received certification from a chartered accountant that the terms and conditions under which he or she intends to employ such foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any, provided that --
(i) a copy of such certification shall be conveyed to a
prescribed office of the Department of Labour; and
(ii) such certification shall lapse if objected to for good cause by such office of the Department of Labour within 15 calendar days of its receipt;
(b) committed to -
(i) pay a fee for such a permit prescribed from time to time as a ratio of such foreigner's remuneration, to be shown in the training fund; and
(ii) notify the Department when such foreigner is no longer employed or is employed in a different capacity or role; and
(c) submitted a certification from a chartered accountant of the job description and that the position exists and is intended to be filled by such foreigner
(2) A work permit shall lapse if, within six months of its issuance, and within every year thereafter, its holder fails to submit to the Department certification from his or her employer's chartered accountant that he or she is still employed, of the terms and conditions of his or her employment, including the job description, and that such employer has made the payments referred to in subsection (1)(b)(i).
(3) Any increase of the payments referred to in subsection (1)(b)(i) shall be effective in respect of an existing work permit only after five years and six months from when such permit was first issued, provided that subsequent work permits issued to the same foreigner shall be deemed one for purposes of this subsection.
(4) The Department may reduce or waive the payment referred to in subsection (1)(b)(i) -
(a) after consultation with the Departments of Labour and of Trade and Industry, if and for as long as it is satisfied that the employer concerned has in place an adequate training programme for citizens and residents; or
(b) when so requested by the Department of Trade and Industry in respect of foreign investment."