Immigration Amendment Act and Regulations: key changes and implementation

Home Affairs

26 August 2014
Chairperson: Mr BL Mashile (ANC)
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Meeting Summary

The Department of Home Affairs explained the key changes brought about by the immigration legislation and regulations that had come into operation on 26 May 2014. It reported that it issues about 600 000 passports annually to citizens who want to travel and in 2013/14 13.5 million foreign nationals visited South Africa as visitors. 

Discussion covered the undesired consequences of the regulations, the effect on the economy and in terms of small businesses, independent immigration practitioners, unabridged birth certificates and the protection of children, student visas and critical skills, business visas, innocent persons labelled undesirable, the ‘first country rule’, the new Zimbabwean Special Dispensation Permit, and fraudulent marriages.

Meeting report

Mr Mkuseli Apleni, Director General of Home Affairs, outlined the reasons for the amendments. He stated that South Africans embraced the full integration of South Africa into the family of nations after 1994. The Department issued about 600 000 passports annually to citizens who want to travel. In 2013-2014 South Africa had welcomed 13.5 million foreign nationals who visited the country as visitors. The rising numbers of tourists contributed to our economy and South Africa was a premium venue for large international events. The National Development Plan (NDP) pointed to the urgent need to attract international migrants with critical skills. The Department was committed to facilitating the entry and exit of legitimate travellers efficiently and humanely. However, DHA had a constitutional mandate to defend the country’s sovereignty, security and public safety.

He said that all immigration decisions needed to be based on an assessment of risk to South Africa. The country faced a range of risks and threats from transnational criminal syndicates who smuggled or trafficked people, drugs, protected species and laundered money. Legislation prior to the amendments was based on tick-box compliance and not on effective screening of applicants. Abuse of the Refugees Act was also rife, with over 90% of applicants only seeking economic opportunities.

He argued that often, those who overstayed or ‘were bogus asylum seekers’, who sought to acquire legal status through marriages of convenience or acquiring identity documents fraudulently. Criminal syndicates worked with corrupt officials and other South Africans to facilitate these illegal transactions. The consequences for South Africa and for foreign migrants are serious. There was the risk to national security, social stability and pressure on social services. The undermining of immigration laws also prevents orderly migration. This led to the extortion, abuse and exploitation of migrants who had fraudulent documents or no documents. They could then be trafficked or forced into crime.

Mr Apleni outlined how persons undermined the system to fraudulently come into the country. Using the name ‘Joe’ he stated that Joe would come from a neighbouring country, apply for asylum and run a small shop which was linked to an illicit economy or syndicate. Joe would then have his asylum claim rejected, engage in a fraudulent marriage, apply for a residency permit and upon receiving it, divorce his wife and bring in his ‘real wife’ whilst becoming a citizen.

He gave examples of a number of such real cases whilst omitting the names of the persons. He also gave some examples of persons from across the globe who had made a valuable contribution to South Africa in various arenas.

Key Changes Introduced By Legislative Amendments
Mr Apleni gave a summary of key changes introduced by the Act and its Regulations:

▪ The Act had been amended to refer to all categories of temporary residence permits as visas. This was aimed at making a clear distinction between short stay visas and permanent residence permits. The only permits to remain as permits are permanent residence permits, which are longer stay in the Republic.

▪ All new applications for visas would be made at the Department’s missions in person and this would allow the implementation of the risk-based approach to immigration management, including the verification of applicants prior to arrival in the Republic.

▪ A change of status or visa terms and conditions from within the Republic would not be permitted for persons on visitor’s or medical treatment visas. Persons who wanted to effect such changes would need to submit applications from outside the Republic. He said that study visas would be issued for the duration of the studies rather than having to renew such visas on a yearly basis.

▪ Business visas would be issued for businesses that enhanced the national interest. In this regard, relevant departments (Department of Trade and Industry and Department of Labour) would first assess the feasibility of the prospective business venture, including compliance with labour laws and the benefit it would have for the South African economy, before a business visa was issued.

▪ A list of undesirable businesses (not encouraged for investment and issuing of visas) had been published in consultation with the Minister of Trade and Industry, however it did not mean that such businesses cannot operate.

▪ An investment amount had also been revised in consultation with the Minister of Trade and Industry, from R2.5 million to R5 million.

▪ After consultation with the relevant Departments and in view of the now enacted Employment Services Act, a decision was taken to repeal the quota and exceptional skills works permits and to introduce a category of critical skills work visas to assist in the attraction of critical skills to the Republic.

▪ A critical skills list had been prepared in consultation with business and government departments and published on 3 June 2014.

▪ An intra-company transfer work visa would be issued for four years instead of the current two years.

▪ Instead of paying a repatriation deposit upon application for a visa, employers were now required to ensure and make guarantees that their foreign employees will comply with the terms and conditions of their visas and would leave the Republic upon termination of contract or employment or expiry of the visa. The costs of deportation may be demanded based on guarantees.

▪ Convictions for human smuggling and trafficking have now been included alongside genocide, terrorism, murder, torture, drug-related charges, money laundering and kidnapping. Previously persons who had outstanding warrants or convictions for offences relating to human smuggling and trafficking could not be properly be dealt with and would qualify visas.

▪ An amendment has been introduced to provide that any person who overstays the duration of a visa or permit for a particular number of days at a time is now listed as an undesirable person who is prevented from returning to South Africa for a prescribed period of time. He stated that such persons would no longer have the option of paying a fine for the transgression.

Immigration Regulations
Mr Apleni gave a breakdown of the Immigration Regulations and their implications:

▪ Foreigners were not required to carry digital (machine readable) passports until 24 November 2015.
▪ For applicants applying for a visa because they are in a permanent homosexual or heterosexual relationship, the Act requires a notarial agreement signed by both parties attesting that the permanent homosexual or heterosexual relationship has existed for at least two years before the date of application for a relevant visa or permanent residence permit and that the relationship still exists to the exclusion of any other person.
▪ For a person travelling with a child, the Regulations require that the person must be in possession of an unabridged birth certificate, and a consent affidavit from the parent or parents of the child authorising the person to travel with the child. The reason for the carrying of the unabridged birth certificate was for the protection of the child to prevent abduction. He argued that citing the number of people travelling on holiday with their children was not enough to argue that this inhibited tourism.
▪ The Minister needed to designate places of entry and exit in the Gazette.
▪ A student's visa would be issued for the duration of the degree.
▪ One needed to provide proof of kinship in the second step when applying for a relative's visa.
▪ The corporate visa would require that at least 60% of the total of staff complement is South African or has permanent residence. This is in line with Government’s key priorities – job creation – previously it was only five persons that the holder of a business visa was required to employ.
▪ Work visa; general, critical skills and intra-company transfer work visa: Department of Labour will issue a certificate confirming compliance with labour standards. Giving such responsibilities to the Department of Labour was not abdicating responsibility as they were all one government.
▪ Quota and exceptional skills permits had been repealed. Instead a critical skills work visa had been introduced which could be issued to someone who did not have employment but with a condition to find employment within 12 months. The difference between a scarce skill and a critical skill is a scarce skill is being produced within the country - there are just too few, for example, maths teachers.
▪ An asylum transit visa would be issued at the point of entry.

Mr Apleni said that the Immigration Amendment Acts of 2007 and 2011 and Immigration Regulations 2014 had come into operation on 26 May 2014. These Regulations repealed entirely the Immigration Regulations made in 2005. TYhe Regulations on Fees of 2005 were still applicable as they had not been repealed.

Notices on the following were published on 3 June 2014:
- Minimum amounts - pension or irrevocable annuity or retirement account - retired person visa or permanent residence permit
- Financial guarantees - corporate applicant - defray deportation and other related costs - corporate visa
- Proof of sufficient financial means
- Minimum net worth - permanent residence permit
- Administrative fines
- Financial assurance - relative’s visa
- Costs of detention and maintenance
- Amount to be forfeited by person in charge or owner of conveyance
- Critical skills list.

Notices on the following had been published on 15 July 2014:
- Financial or capital contribution for businesses for business visas and permanent residence permits
- List of undesirable business undertakings in relation to an application for business visa
- Businesses qualifying for reduction or waiver of capitalisation requirements as determined to be in the national interest in relation to a business visa
- List of undesirable business undertakings in relation to an application for corporate visa.

Mr Apleni said immigration was a complex matter and can promote tourism in the country but presented a huge risk as well. This required a paradigm shift. The intention had not been to kill the economy or tourism or anything else. He argued that this had been researched and best practice had been observed in various countries.

The Chairperson said that if anyone was still confused then they would never understand the immigration legislation as this presentation had been made things very clear. People tended to argue notions based on things they had heard about in the media. The facts had been presented by people who were at the forefront of these activities every day. The presentation had stated what the challenges were and DHA's responses. It was important that those within the country felt safe and that their children felt safe.

Unintended consequences
Mr M Hoosen (DA) said he appreciated that this briefing had been scheduled. There were many matters dealt with in the regulations that were not contentious. For example, there was agreement that one needed to tighten up regulations. There were many good intentions in the regulations, however the unintended consequences had been the issue.

Mr D Gumede (ANC) thanked the Department for listening to the cries of millions of South Africans who over the years had asked what was being done about this uncontrolled immigration. The unintended consequences should not hinder immediate implementation of the regulations. The instances where there would be gaps, then resources could simply be increased. The inputs had been well considered and the decision had taken years to be made. There were teething problems in all situations but this was not a reason not to  implement as these could be attended to.

Effect on the economy
Mr Hoosen said one unintended consequence would be the effect on the economy. He gave the example of the private immigration companies set up over the years that had been made redundant with the monopoly status of VFS taking over immigration practices. The impact of this would be hundreds of jobs lost. He was surprised that no impact assessment was done as a number of unintended consequences could have been avoided.

Mr Apleni answered that there was no law prohibiting the practitioners to operate in South Africa. These practitioners were still able to help persons apply but the applicants must accompany them in order to get biometrics and photos. VFS did not have an effect on what such practitioners were able to do.

Mr Jackie McKay, Deputy Director General: Immigration Services, replied that the repeal of Section 46 which did away with practitioners in law, did not cause them to become illegal bur simply said that they should self-regulate and not be regulated by government. This was not a matter of causing ‘major job losses’ and it did not outlaw them, they still exist and have customers. The new regulations did not ‘bring about VFS’. It was an operational programme that the Department embarked on that was meant to bring about efficiency. This was not linked to the regulations at all.

Unabridged birth certificates
Mr Hoosen said the intention of this was good but the unabridged birth certificate requirement was making  'the average man the criminal’ when it was the Department that was often unable to issue the birth certificates. He would encourage the Department to do a proper assessment of how many children were travelling in and out of the country. Proper research needed to be done to assess the actual impact on tourism and travel. He asked why had this regulation not been issued at a time when the Department could actually implement it? The DDG said that in two years' time they will move to a paperless system and issuing these would be much faster. But then why not introduce this specific regulation in two year's time when you know you are capable and can deal with it and the turnaround time can happen in 24 to 48 hours. Already there are a number of travellers who will not be able to get these birth certificates for their children in time for them to be able to travel.

Mr McKay replied that they would definitely do an assessment of the number of children coming in and out of the country. The country was not trying to limit the number of children coming into the country. However the United Nations had identified South Africa as a hub for child trafficking as well as human trafficking. Clearly we need to protect our children and foreign children. We do acknowledge there are unintended consequences but we need to look at what is the greater good.

Mr A Figlan (DA) said that there had been people who had been waiting more than 90 days for the issuing of an unabridged birth certificate.

Mr Apleni replied that those born since April 2013 had been issued their unabridged birth certificates on the spot. What was being spoken of was those children ‘born in the past’. People were encouraged to register their new-born children within 30 days and they would be given it instantaneously. There were about 2 million children travelling per annum. The unabridged birth certificate was required from 1 October 2014. These regulations were actually passed by the Fourth Parliament.

Student Visa and scarce skills
Mr Hoosen asked why was a visa not issued for a longer period of time for a student studying toward a critical skill? If they studied within the country then why could these skills not be kept here rather than they be chased away as soon as they qualify?

Mr McKay replied that the intention was not to ‘chase people away’. When they qualified, they were free to apply for another permit without going home or leaving the country. Only two types of permits required you to leave the country, the visitor visa and the medical treatment visa. If one is a skilled person who studied within a critical skill area then one was able to apply for another visa. Going forward, there would be a move to partner with other government departments and access student databases in the country for skills needed and proactively offer them visas to remain in the country.

Ms D Raphuti (ANC) said that one could not be given a ‘blanket five years to do medicine’ there needed to be consideration of how they fared at school. She also asked if students could be made to do community service after finishing their education.

Visitors Visa
Mr Hoosen said that in order to ‘stay ahead of the tourist game’ then South Africa needed to do things better than other countries. He spoke about possibly having online visa applications and handling the issue of photographs and biometrics when the person landed at OR Tambo.

Mr McKay said that sometimes people used legal action to force their way into the country after applying elsewhere and then assuming that an application was acceptance. There was a need to have people within their own countries giving all the information before they came to South Africa, this information could then be verified at a port of entry.

Business visa
Mr Hoosen referred to the restrictive R5 million required for a foreigner to open a business in South Africa. Many within Parliament had spoken about empowering the small business owner. Although he understood they want to ‘save investment for South Africans’, in the absence of this investment, then allowing foreign nationals to invest could be another option that spurred competition as well as fuelled the small business market. He argued that the visa business regulations had become more and more cumbersome. These regulations were adding more red tape.

Mr Apleni replied that the government had created a department for small businesses and so South Africans needed to be encouraged to engage in being small business owners.

Undesirable status
This had caused immense frustration. Mr Hoosen thanked the Department for the support he had been given on this matter. He understood the reasons for this but innocent people were being punished. There were people who applied for visas and the process then took a long time, sometimes even months, and when they left the country whilst waiting, they were marked as undesirable even though the problem was due to the Department. You have to have a list of people who have applied for a visa and are waiting.

Mr McKay replied that the backlog of visas was being addressed and it was becoming a case where people get their visas within four to six weeks. European nationals had abused the system by simply the paying fines and leaving and coming back. The status of being undesirable made people respect the laws. Now they are returning home and coming back with the requisite documents.

Mr Figlan noted that the department issued 600 000 passports annually. He asked if the Department had the capacity to issue more passports for people wanting to leave the country?

More visitors
Mr Figlan asked if the Department was looking to get more visitors to the country in both business and tourism?

Corrupt officials
Mr Figlan asked how many corrupt officials had been found and charged?

First country rule
Ms N Mnisi (ANC) said that all present knew that Home Affairs had focused on the security of its citizens and it was good that children’s safety was being taken into consideration. She asked if the Mr Apleni could explain the first country rule and why it was difficult for South Africa to implement that.

Mr McKay replied that this spoke to the idea that when someone fled their country, they needed to seek refuge within the first safe country they arrived at and apply for asylum. What was happening is people were making a beeline for South Africa to apply for asylum. South Africa did not have an encampment policy which meant that refugee camps further north were emptying and people were instead moving down in order to make use of the ‘liberal law’ within the country. What had been happening on a multi- and bi lateral level was to share information and link databases. This would show if people were refugees in other countries.

Visa application outside country
Ms Mnisi asked if the Mr Apeni could unpack the issue of applying for a visa outside the country.

Application for visas in person
Mr G Gardee (EFF) asked to what extent it was practical for people to apply for visas in person. He asked what contingency plans had been put in place for countries such as China to ensure that there were no unintended consequences. The same applied for India who were also key business partners. He asked to what extent had the government identified those cities around the world where investments came from and ensured that those people could apply in person?

Mr McKay replied that online application had been introduced a few months ago. However there was still a need for people to come in personally for the biometric aspect. With their model of risk management, you ‘export your borders’ so that our borders started in the foreign country. In the past there had been some cases of people landing at OR Tambo and when denied access to the country they bring a lawyer who demands they be let in within a very short space of time. There was also the need to ensure that the person who applied for the visa was the same person who entered the country.

Mr McKay replied in terms of its presence within countries with investment opportunities, that there was a move to extend the ‘footprint of the Department’. That within China for example there was a move to increase the Department's presence in more places and allow people more places in which to obtain visas.

Mr Gardee wanted to speak to the uncertainties that came with applying this regulation as it gave the impression that government was not resolute and different departments ‘did not read from the same page’. There had been talk of meetings between Ministers in an attempt to explain these rules. There were different messages being read from these meetings.

Retaliatory actions
Mr Gardee asked about the extent to which South Africa would expect retaliatory actions by other states and how these would be handled.

Mr Apleni replied that countries were sovereign and countries assessed their own risks and opportunities. He gave the example of not waiving visas for Kenya due to the number of security risks within the country. However despite South Africans being made to have a visa for the United Kingdom, there was not retaliatory action on South Africa’s part.

Mr Gardee said the presentation had not spoken to the Zimbabwean issue and the Minister had come out speaking recently on the new Special Dispensation Permit for the Zimbabwean people.

Mr Apleni replied Cabinet has extended the period of the permit and applications are to take place between 1 October to 31 December 2014. They would then have an extension of three years. These permits were not renewable and during this time period, Zimbabweans must regularise themselves according to the permit regime.

Mr B Nesi (ANC) said that there was a need to be resolute and decisive and there was a need to implement the legislation as soon as possible. He had been in the security cluster for 10 years and the problems the legislation was attempting to address were already in the country. Anything could happen to this country. The security of the country, of our children and the citizens was of the utmost importance. The sooner there was implementation, the better.

Fraudulent marriages
Mr Nesi asked how the marriages that had been engaged in fraudulently, even as far back as ten years, could be dealt with.

Mr McKay replied South Africans had been warned against these marriages and they had witnessed a decline in that area.

The Chairperson said there seemed to be a high level of patriotism within the Committee and their engagement had shown a high level of encouragement for these regulations. He noted that South Africa was not the same as other countries and the democracy had made the country very attractive.

The meeting was adjourned.

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