Immigration Bill: briefing by the Department

Meeting report

SELECT COMMITTEE ON SOCIAL SERVICES
21 May 2002
IMMIGRATION BILL: BRIEFING BY THE DEPARTMENT

Chairperson: Ms Jacobus (ANC)

Documents handed out:
Immigration Bill [B79B-2001]
Suggested amendments from the Department of Home Affairs for technical or administrative reasons
Suggested amendment from the ANC (Appendix 1)
Suggested amendments from COSATU [See appendix 2]

SUMMARY
The Committee was briefed by the Department of Home Affairs on the Immigration Bill, which has been passed by the National Assembly after a lengthy process of deliberations and amendment.

MINUTES
Ms Jacobus (ANC) explained that the Committee would be briefed by the Committee regarding the Bill, and following which the Committee would then receive technical amendments from the department. At this point she would give Members from the different political parties the opportunity to suggest further amendments. The Committee would then be ready to discuss the Bill at length in their study groups, and that deliberations and voting on the Bill would occur on Wednesday 22 May 2002.

Ms Jacobus explained to Dr Ambrosini that the Department could begin by providing the Committee with a clause-by-clause briefing on the Bill, and any comments. She pointed out that the Committee had been engaged in a joint process and that they had fairly exhausted discussions surrounding the Bill as the result thereof.

Mr Lambinon explained that the Department had made a few final changes to the document, and that the document currently before the Committee was the latest version of the Immigration Bill. He noted that from the perspective taken by the Department, they would be hoping to engage with the Committee concerning the Bill at some stage. He added that they had engaged with other Departments, and one of the major departments had been concerned with the quota system.

Department briefing on the Bill
Mr Lambinon stated that Clause 1 made provision for the definitions. In that regard, he pointed out that subsection iii defined the Board, that subsection iv defined a Chartered Accountant, that subsection vii defined a corporate applicant, that subsection xviii defined an illegal foreigner, and that subsection xxi provided a definition of marriage.

Mr Lambinon referred to the objectives and the structures of immigration control, and explained that Clause 2 (1) (a) dealing with the promotion of a human rights based culture, and Clause 2 (1) (b) dealing with the facilitation and simplification of the permit process, were very important provisions.

Mr Lambinon moved on to deal with the powers of the department, and referred the Committee to Clause 3. The focus would be on two issues, namely the entry into the workplaces provided for in Clause 3 (1) (a) and the inspection of public places in terms of Clause 3 (1) (b). He pointed out that the department would be hoping to engage the committee in that regard.

Mr Lambinon turned to the Immigration Advisory Board in terms of Clause 4. He explained that the number of civil society representatives had been reduced from 8 to 5, and that this was an issue that possibly required further discussion. He pointed out that Clause 5 dealt with the functions of the Board, and that Cl 6, dealing with inter-departmental co-ordination, was another area that could require further engaging. He stated that the regulation making in terms of Cl 7 would be vital to the Act, the Act being an enabling Act. He added that Cl 8, the adjudicative and review processes, was a very important clause.

Mr Lambinon referred to admission and departure, and explained that this was dealt with in Cl 9 of the Bill. He stated that the real substance of the Bill could be found in Cl 10, the section dealing with temporary residence permits. He explained that this was followed in the Bill by specific sections relating to the different types of permits, Cl 11 through to Cl 24. He noted that the Department would be hoping to engage with the Committee on the business permits, the work permits and the corporate permits.

Mr Lambinon explained that Cl 25 dealt with permanent residency, and that this section was followed by sections dealing with the different grounds upon which permanent residence may be established. He added that the withdrawal from permanent residence was dealt with in Cl 28.

Mr Lambinon moved on to exclusions and exemption in terms of Clauses 29, 30 and 31. He emphasized the fact that enforcement would be very important in immigration control, and turned to Cl 32 of the Bill. Cl 33 dealt with the inspectorate, and that provision was made for the deportation and detention of illegal foreigners in Cl 34. He noted that this was another provision that could possibly require further debate. Ships were provided for in Cl 35, and that the monitoring of exits and entries into the Republic would be governed by Cl 36.

Mr Lambinon referred the Committee to Cl 37 dealing with the Immigration Courts, and pointed out that he had no doubt that the members were fully versed upon this issue. He stated that in terms of duties and obligations, Cl 38 dealt with employment, Cl 39 dealt with learning institutions, Cl 40 dealt with accommodation, Cl 41 dealt with identification, Cl 42 dealt with the aiding and abetting of illegal foreigners, Cl 43 dealt with the obligation of foreigners, Cl 44 dealt with the organs of the State, and that Cl 45 would deal with other institutions.

Mr Lambinon pointed out the miscellaneous matters covered in Cl 46 through to Cl 48 of the Bill. He referred to the offences provision in Cl 49, and noted that Cl 50 dealt with administrative offences.

Mr Lambinon explained that from Cl 51 onwards, transitional arrangements relating to the implementation of the Act had been dealt with. He pointed out that the short title and the name of the Act were covered in Cl 55.

Mr Lambinon stated that it would now be possible to interrogate the document.

Ms Jacobus (ANC) directed the Committee to hold on to any questions requiring clarification because the Committee would be hearing a second presentation. She pointed out that the committee would not be entering into any major discussion because this would be dealt with in the study groups.

Dr Ambrosini stressed the fact that none of the comments to be made by the Department were dictated by policy reasons, and emphasized that policy decision-making was the duty of the committee. He explained that he would attempt to highlight difficult areas in the proposed legislation. He informed the Committee that the Department had been involved in the process until 8 May 2002. From that point, the process was carried through the political sphere, and he explained that the department was only able to see the product of the process on 15 May 2002, the day upon which the Bill was informally presented to Minister Buthelezi. The Departments did have comments that it had been willing to make at that time, but they had been unable to do so as the result of policy reasons. The Department therefore welcomed the opportunity to be heard by the Committee.

Dr Ambrosini explained that he would be proposing amendments and considerations, and that he would list each of them.

Dr Ambrosini began with his first issue. He referred to Cl 1 (2) and explained that there would be two relevant considerations in that regard. He stated that Clauses 15, 18, 19, 21, 26 and 27 would have to be read first. The Department had understood these to be clauses in which Chartered Accountants would apply. In that regard, he said that there was a notion of exclusion in the provision. Although, as he pointed out, he was dealing with a technical issue, he firmly stated that it would not be possible for the department to provide any other certification provided for in the Act.

He gave the example of Cl 15 of the Bill that referred to the Book Value of a company, and explained that most officials in the Department did not have the training to allow them to understand what the section was referring to. He pointed out that the same situation applied to the other provisions that he had began by referring to. The Department would have a duty to comply with all legislative orders. However, he felt that as the Bill stood, the Department would not be able to carry out the mandates, as it would take time to produce the capacity.

Dr Ambrosini referred to Cl 3 (1) (e), and explained that the provision had been inserted by the Portfolio Committee and he would not be questioning the policy decision as the result thereof. Nevertheless, he explained that from the point of view of the Department, the provision had the ability to create a loophole in the law. He stated that it would always be possible to argue that there had been a procedural flaw in the process. This is because one would not be able to establish a reasonable suspicion on a routine basis. Thus he felt that standards would have to be developed in an attempt to prevent the xenophobia aspect.

Dr Ambrosini moved on to Cl 4 (2) (j) dealing with the composition of the Board. He explained that the Board used to consist of 8members from civil society. He went on to say that the portfolio committee had added an additional member on the government side. However, the position was currently such that the civil society component had been reduced from eight members to three members. Thus although there had always been a preeminence on the government side, he stated that the position had worsened.

Dr Ambrosini explained that as far as Cl 4 (3) was concerned, he only had to point out that provision had not been made for the Board to be convened at the request of the Minister and/or the Director General. He felt that such provision would have to be made in the event of possible emergencies or otherwise.

Dr Ambrosini referred to Cl 5, relating to the functions of the Board. He explained that as the section originally stood before 8 May 2002, the formulation made greater provision for administrative monitoring of the department. As a result, he stated that the current formulation would have to be expanded.

Dr Ambrosini stated that Cl 6 dealing with inter-departmental co-operation was a problematic provision. He pointed out that the department only became aware of it on 15 May 2002, and that they did not have any input regarding its conclusion. He explained that although the provision sounded good, inter-Parliamentary co-ordination would have to occur through the Board. However, the position was currently such that there would be a difference between the two organs. He felt that this would split co-ordination and result in the possibility of conflict, and he submitted that the Committee would have to delete the provision.

There was also a section that had been deleted. He explained that the old Cl 6 ascribed all conduct to the Department in general, and not to the Minister. This would be absolutely essential from a technical and administrative point of view. Thus he suggested that the clause would have to be reinstated in an attempt to empower regional officers. He noted that the section had been fundamental to the entire policy.

Dr Ambrosini moved on to Cl 11 dealing with the requirements of a visitors permit, and explained that the amendment in that regard would be exclusively technical. He referred to Cl 11 (1) (a) and stated that the provision originally had an "and" provision instead of the current "or" position. In light of that, he explained that it would be important to maintain the cumulative test. He referred to Cl 11 (1) (b) and explained that although the old formulation provided an option, the distinction had been collapsed. He stated that this would have to be corrected in order to avoid future problems. He turned to Cl 11 (4) and stated that there was another misunderstanding. He firmly stated that he had no idea why the provision was redrafted in the first place because the provision had a specific purpose as it originally stood. He explained that the visitor's permit would have to be specifically made into a multiple entry visa, at the discretion of the Department and not upon the request of an applicant. It would be essential to clarify the position because all the other temporary residence permits were multiple entry permits.

Dr Ambrosini explained that with regards to Cl 13 (1) (a) making provision for study permits, the option of the applicant had been added into the test. Such a provision would not necessarily work because not all the schools would have the option provided for in Cl 13 (1) (b), that is, the ability to submit the application on behalf of prospective student. He explained that it would not be necessary to include that provision because it would apply only to certain schools. The provision for the possibility of obtaining a work permit while studying in terms of Cl 13 (3) (c) would have to be amended. It had to be clear that full time students would only be able to engage in part time employment. However, the current reformulation did not clearly illustrate that position.

Dr Ambrosini explained that although Cl 15 stipulated that it would be dealing with business permits, the only references made within the section were to investor's permits. He agreed with the saying that a name would only be a name, but stated that in the context they would be dealing with two totally separate issues. In that regard, he felt that a failure to correct the provision could result in confusion.

He moved on to S 15 (5) and said that the provision was problematic. He referred back to the multiple entry issue, and explained that this provision could be taken to mean that business permits are multiple entry permits. However, he said that by virtue of the express authority, this would automatically mean that all the other permits would not grant one multiple entries, and felt that the position would have to be clarified.

Dr Ambrosini moved on to S 17 (1) (b) referring to medical treatment permits, and explained that he had a technical error to bring to the attention of the committee. He noted that although the possibility existed that the department had misunderstood the provision, they felt that the provision was not consistent. The language had not canvassed the intention that the Department had placed behind the provision, and the Department preferred the adoption of the language used in the original provision.

Dr Ambrosini moved on to Cl 18 dealing with relatives permits, and explained that the addition of "applicant's option" was unnecessary. Nevertheless, he stated that no problems would result.

Dr Ambrosini explained that the work permit was a serious matter, and added that it was the core of the Bill. Nevertheless, he reminded the Committee that as a civil servant, he was not looking at the policy reasons. In light of this, he stated that the quota system provided for in S 19 (1) through to S 19 (3), would have to be revisited. He explained that the department had only seen the language used on 15 May 2002. He firmly stated that under the present conditions and within the foreseeable future, the Department would not be able to administer the mandate. He pointed out that the Department would be able to learn, however, the capacitating would require a transformation of the whole department. As a result, although it would be possible to implement the procedures, he could not say how successful the outcomes would be. He noted that the same problems would apply to Cl 19 (2) and Cl 19 (3).

Dr Ambrosini added that a more complex structure would be necessary to establish a quota system because the current position was such that no provision had been made for criteria or parameters of the rule. He submitted that the Committee would have to revert to the section as it stood on 8 May 2002 because the Department would be able to conform to the mandate in that form. He noted that the clause would thereby also connect the 'brain drain' and the 'brain train' problems.

Dr Ambrosini explained that a technical error had been made in Cl 19 (5) through the insertion of the word "abroad" into the provision. He stated that this had changed the meaning of the provision and that this would ultimately impact upon the very nature of the Act. He explained that work permits were important types of permits and that the result thereof is that companies would not send unskilled workers to South Africa.

Dr Ambrosini moved on to the corporate permits governed by Cl 21 of the Bill. He explained that the Department had difficulty in understanding what the provision concerned. He pointed out that they had only seen the provision on 15 May 2002, and added that the purpose of the provision was questionable. Licencing fees were no longer used because of the more appropriate means test. The intention had been confused. Thus he submitted that the Committee revert to the old version of the corporate permit, in which there would be equal treatment of all those affected. He noted that as the provision stood, it would have the potential of creating insurmountable problems with the thousands of workers.

Dr Ambrosini turned the Committee to exclusions and exemption and referred the committee to Cl 29 (1) (c ). He explained that the matter had been fully discussed in the Portfolio Committee and that a policy decision had been made. Nevertheless, he stated that the Department felt duty bound to present its position, and the Department would not be able to implement the provision.

Dr Ambrosini referred to Cl 33 (1) and (4), dealing with the inspectorate, and pointed out that the Department was concerned with the terminology that had been used. He explained that the section referred to inspectors and the inspectorate. However, the unit was named the inspectorate. He suggested that the Act would be better served by referring to the unit as the inspection and enforcement unit.

Dr Ambrosini explained that the problems surrounding Cl 36 (1) dealing with the monitoring of entries and exits into the Republic had been covered.

Dr Ambrosini stated that the error in Cl 37 dealing with the Immigration Courts was a technical error.

Dr Ambrosini moved on to Cl 53 relating to the transitional provisions for the existing permits, and said that it was another 'hot potato'. He explained that the clause had been deleted by the Portfolio Committee. However, the Committee had given the Department the opportunity to motivate the provision, and he explained that it was in that regard that they were currently raising the point.

He stated that it would be necessary to reorganize the system in order to ensure that the law would be implemented within some months. As a result, the Department would have to be able to bypass certain procedures. He explained that the old Cl 53 had given the Department the power to do this, in terms of Cl 3 (3) and Cl 3 (5) of the Public Service Act. The Portfolio Committee had relied on a letter that it had received stipulating that such a provision would be unconstitutional. Nevertheless, he emphasised that there was a difference between by-passing the agreement and by-passing the process. He pointed out that it would be an important section because it would empower the Department to carry out its mandate.

Dr Ambrosini explained that Cl 57 in terms of the previous Bill had been deleted by the Portfolio Committee. He suggested that since that was the last item on the agenda that night, the Portfolio Committee was tired at that stage. Nonetheless, their understanding was that Cl 57 should not have been deleted, and he felt that the deletion had been a mistake on the part of the law advisor.

Dr Ambrosini then proposed the inclusion of a provision empowering the Department to impose application fees for the permits. He noted that the fees would not be unreasonable nonetheless. He ended by outlining some technical issues.

Ms Jacobus concluded that it would be useful if he could provide the Committee with a list of the technical amendments that he had concluded his presentation by referring to.

Discussion
Mr Lubidla (ANC) confirmed that the major concerns held by the Department surrounded the implementation of the legislation in its current form.

Dr Ambrosini affirmed that position. He pointed out that the Department felt duty bound to inform the Committee of the implementation problems.

Mr Lambinon added that the concern was also shared by other government departments that they had interacted with. He referred to the quota system in particular.

Ms Vilikazi (IFP) emphasized the point that she had never dealt with a Bill as criticized as the Immigration Bill. She stated that she felt very embarrassed as a Member of Parliament. Thus she felt that they would have to deal with the Bill accordingly.

Mr Makoela (ANC) wanted to know how the legislature could become aware of implementation problems faced by the Department.

Ms Jacobus pointed out that there had been much criticism surrounding many of the Bills enacted by Parliament. However, she explained that loopholes would only become evident in the implementation stage, and that no law would be cast in stone. The result thereof would be the enactment of future amendments.

Mr Makoela (ANC) questioned whether the Department would return to the Committee in the event of problems.

Ms Jacobus (ANC) responded affirmatively. She noted that the Committee had been amending legislation since 1994.

Dr Ambrosini stated that a legitimate point had been raised.

A Member reminded the Committee of the important oversight role that they were required to carry out.

Dr Ambrosini said that he hoped that the Committee would interrogate them until they were satisfied with the Bill.

Mr Gouws (DP) enquired whether this meant that even if the Department could anticipate problems, the committee would have to await their occurrence before making any amendments.

Ms Jacobus stated that she had not intended to introduce such an implication.

Ms Horne (NNP) wanted to know why the Committee would even pass a Bill that could not work.

A Member called for a point of order, and reminded the floor that the Chairperson had requested only questions of clarity. He noted that it was the responsibility of the Committee to pass legislation, and that amendments would inevitably be made at a later stage.

Ms Jacobus sustained the point of order. The committee would have to understand that their job was not merely to rubber stamp Bills that had been passed by Cabinet. Their job would be to determine if the detail within the legislation would meet the objectives sought by the legislature.

Ms Vilikazi (IFP) agreed with the Chair. She explained that the function of the NCOP would be to scrutinize Bills, and for the Committee to add its views therein.

Ms Jacobus referred to Cl 40 dealing with accommodation issues and stated that overnight accommodation had been deleted. However, she explained that it was still referred to within the Bill, and suggested that a technical amendment would be necessary.

Dr Ambrosini stated that their position was that the overnight issue could not be eliminated. He pointed out that no-one would be able to define non-overnight accommodation.

Ms Jacobus asked whether any political parties wished to suggest further amendments.

Mr Tolo (ANC) proposed that the Committee deletes Cl 19 (1) because the phrase 'quota work permit' gave the impression that they were dealing with a different permit. He then proposed an addition to Cl 19 through Cl 19 (6), thereby allowing the Department to issue work permits to persons possessing necessary skills in the aim of empowering the economy.

Ms Jacobus repeated the amendment and explained that the ANC proposed a deletion of Cl 19 (1), and the addition of Cl 19 (6). She pointed out that the wording that had been suggested was similar to the original Bill, and added that Cl 19 (1) had caused some confusion.

Ms Jacobus (ANC) called for additional amendments.

Ms Vilikazi (IFP) supported the ANC. She added that she would provide the Committee with the opinion held by the IFP during the next meeting.

Mr Tlhagale (UCDP) stated that although his party would not be submitting any new amendments, he would also express the opinion held by his party during the next meeting.

Ms Horne (NNP) added that the same would occur with her party. She pointed out that although her party did have its concerns, there were no proposals to be made.

Ms Jacobus asked whether there were any new amendments. Should members wish to bring forth further amendments, it would be most appropriate to do this by the close of the day in order to provide the members the opportunity to look over the proposals in preparation for the next meeting.

Ms Jacobus (ANC) thanked the team from the Department.

The meeting was adjourned.

Appendix:
ANC Amendment
to delete Clause 19 (1)
insert a new clause 6 as follows:-

(6) Notwithstanding the requirements of this section, in addition, the Department may, taking into account the skills requirements of the economy, issue a work permit to persons possessing specific skills or qualifications after consultations with the Departments of Labour and Trade and Industry, provided that the annual number of work permits so issued may not exceed any prescribed quota.

Cross reference in the current subsection 2 in line 13 will then become subsection (6)

Appendix 2