Immigration Act Regulations: briefing

Home Affairs

24 February 2003
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
25 February 2003
IMMIGRATION ACT REGULATIONS: BRIEFING

Documents handed out:
Proposed Amendments to the Immigration Regulations (.pdf file)
Department's written response to Members' Questions (Appendix)
Letter from PriceWaterhouse Coopers
Letter from American Chamber of Commerce
Letter from Cape Town Chamber of Commerce

SUMMARY
The Department briefed the Committee on amendments to the Immigration Regulations and on the current status of the Regulations, which have now been properly proclaimed and Gazetted. The Committee discussed a significant change to the Regulations: reading Section 7 with Section 51 instead of with Section 52. The State Law Advisor gave the opinion that Regulations issued under Section 52 could only be those 'required' by the Act, not those 'necessary' or 'convenient' for the Department. The Department presented part of its written response to written questions from the Committee. The Committee considered whether the Department was restructuring by means of the Regulations although the Department asserted that restructuring was a separate process.
The Committee resolved to meet with the Department at its next meeting to establish a schedule to continue its engagement with the Department on the Regulations.

MINUTES
Briefing
Ms M Maunye, Acting Chair, ANC, reminded the Committee of the decision at the previous meeting to submit written questions to the Department of Home Affairs. She asked the Department officials to present the answers to those questions and to brief the Committee on the amendments to the Immigration Regulations.

Amendments to Immigration Regulations
Adv Lambinon: Acting Director General, Department, stated that a few amendments had been deemed necessary. These were presented to Minister Buthelezi and incorporated into the Regulations.

Adv K Malatji: Chief Director: Legal Services, Department of Home Affairs, presented the details of the amendments.

Adv Malatji stated that amendments to the Regulations were minor - most were typographical errors. (please see document attached)

Ms A van Wyk (UDM) pointed out that Regulation 9(3) did not refer to financial thresholds and asked how it could be amended under item 4 on the list of amendments.

Adv Malatji replied that it was a typographical error and that the reference in item 4 should be to Regulation 19(3).

Adv Lambinon intervened during Adv Malatji's presentation, at item 14: Regulation 28(4)(c), to state that it was obvious by then that the amendments were minor. He suggested that the list as well as the new version of the Regulations should simply be made available as soon as possible.

Ms Van Wyk responded that the technical changes were of interest. She cited the change in item 1 where the phrase 'read with Section 7' was changed to 'read with Section 51'. At the previous meeting, members of the Committee and Department officials had discussed the apparent conflict between Section 52 and Section 7 at length. This had happened because the previous Regulations had stated that Section 52 be read with Section 7, which the Department had now changed to 'read with Section 51'.

Mr W Skhosana (ANC) agreed that the briefing on the amendments should continue. He cited the removal of 'not' as an example of a 'serious' change.

The Acting Chair asked that Adv Malatji continue his briefing.

Adv Malatji listed the rest of the amendments, items 15 to 37, in the list of amendments to the Immigration Regulations.

Status of Regulations and Presidential Proclamation
Mr Chauke asked what the present status of the Regulations was.

Adv Malatji explained that the President had proclaimed the Regulations and this had been gazetted. The technical problem had thus been rectified. The Regulations were adopted in terms of Section 52 of the Immigration Act, which provided for a simplified process to bring the Act into force, with the Immigration Advisory Board (IAB) to be constituted after 90 days. With the IAB in place, the Regulations could be adopted in terms of Section 7 with public input and following the parliamentary process in the Section.

The Acting Chair raised the issue of the change in the opening statement of the Regulations where Section 52 was now to be read with Section 51 not Section 7.

Ms Van Wyk asked which version of the Regulations the President had proclaimed - the version stating that Section 52 should be read with Section 7 or the new version.

Adv Malatji replied that the Presidential Proclamation brings the Act into commencement in terms of Section 55. The Minister then relies on the Sections of the Act to promulgate the Regulations.

Mr Pretorius (NNP) asked if the legality of the Regulations had been affected by the High Court ruling.

Adv Malatji replied that there was no problem since the Regulations were published on 21 February 2003 after the Proclamation was signed on 19 February 2003.

Change from reading Section 52 with Section 7 to reading it with Section 51
Mr Sikhakhane asked for an explanation of the change from reading Section 52 with Section 7 to reading it with Section 51. He wondered what difference this made and what happened to Section 7.

Adv Malatji replied that Section 7 did not deal with the transitional arrangements. The previous version of the Regulations had caused confusion since people thought that the public participation process and parliamentary procedure required in Section 7 were required for the transitional Regulations. Reading Section 52 with Section 51 only refers to the transitional period. Section 51 is the Section that should be cited. Section 7 only takes force after the transitional arrangement.

Mr Sikhakhane asked if this meant that the Portfolio Committee was 'exonerated' from intervening with respect to the transitional Regulations.

Adv Malatji replied that the Portfolio Committee has an oversight role and could ask anything. When Section 7 is in force, the 'proper' process will be followed. For now though, there was nothing wrong in the Portfolio Committee asking whatever it pleases.

Mr Chauke stated that he thought the Department had now clarified the issue. He noted that the Committee would have a role in the process under Section 7 when it took force.

Regulations under Section 52
Mr Chauke asked for Adv Kelner's (State Law Advisor) opinion on the Department's view.

Adv Kelner stated that he had only received the Regulations in the past half hour. From what Adv Malatji had said, he could see no problem with the Department's view. He was concerned regarding the wording in Section 52, which spoke of regulations 'required' in terms of the Act versus Section 7, which went further. Section 52 does not allow 'convenient' or 'necessary' regulations only those that are required by the Act. He noted that this opinion was 'off the cuff'. If the Regulations were required then he could see no problem with Adv Malatji's view.

Mr M Lekgoro (ANC) asked Adv Kelner to clarify his view.

Ms Van Wyk asked about the impact of Section 52 subsection 2 in this. She noted again that the change from reading Section 52 with Section 7 to reading it with Section 51 rectified a mistake that had caused a lengthy 'fight' in the previous meeting.

Adv Kelner replied that Section 52 subsection 2 stated that Regulations under the previous Act (Aliens Control Act, 1991) remained in force unless repealed.

Ms Van Wyk asked if the Immigration Regulations were needed, given this subsection.

Adv Kelner replied that, on his reading, if the Regulations adopted under the previous Act were adequate then these Regulations were not required but if the previous Regulations were not adequate then these Regulations were required. Clarifying his earlier opinion, he stated that Section 52 read with Section 51 gives the Minister the power to make Regulations required by the Act. Section 7 went further in allowing Regulations that were necessary. If the Regulations are Regulations that the Act says must be made then, according to Adv Malatji's view, they were in order.

A Member asked if Section 52 (2) was not superfluous since the Aliens Control Act had been repealed.

Adv Malatji replied that the Immigration Act comes into force on 12 March 2003 and in the interim the Aliens Control Act was in force; it is only repealed when the Immigration Act comes into force.

Taiwan
Mr Chauke asked about the addition of Taiwan as a visa exempt country in the amendment to Schedule C, paragraph 4. What is its current status regarding visas? Was the exclusion a mistake?

Adv Malatji replied that Taiwan had been erroneously omitted. The countries on the list were decided in consultation with the Foreign Affairs Department.

Written Questions and Answers
Mr G Grobler (DP) asked how the Department had come to a figure of R 12 million as a permit requirement and the figures in the yearly limits. What criteria were used to reach these figures?

Adv Malatji replied that this was contained in the written answers supplied by the Department. He asked if he should answer Mr Grobler's question in isolation or proceed to take the Committee through the questions and answers.

The Acting Chair said that the Department officials should read the questions and answers, allowing members to 'jump in'.

Adv Lambinon stated that the Department had been pressed for time, having received the bulk of the questions the day before, however they had endeavoured to incorporate and answer all the questions. Questions had been grouped by subject and dealt with in these groups. Copies of the document would be sent to members of the Committee later that day.

Adv Malatji took the Committee through the first three groups of questions.

Regions
The first group of questions asked the Department to explain the issue of regions - their structure, the powers of regional directors, monitoring of regions for corruption and the reason for the regional form.

The Department's response was that during the Portfolio Committee's discussion of the Immigration Bill, Clauses dealing with the regions were deleted because the Committee thought the matter ought not to be covered by the legislation. The Act gave powers to the Department and the Minister. The Department has to say how it will apply these powers.

The Department noted that it already had a regional structure. Furthermore, it had to work with other Departments, such as the Labour Department, which worked regionally. It noted also that there were variations by region, for example remuneration.

The Minister would appoint regional directors. The Department noted that despite the title the regional directors would not have the status of directors in the civil service; they may not even all have the same rank as one another.

The regions were to issue permits, detect and prevent illegal immigration and so on. The head office was to ensure conformity and detect corruption. This would allow an efficiency gain.

The second group of questions regarded the use of Chartered Accountants (CA). Was this concurrent with the Act?

Role of chartered accountants
The Department replied that the role of the Chartered Accountants was to certify facts that the Department would otherwise have to ascertain itself, which it often lacked the skill to do internally. The Department then had to check the paperwork only, not these questions of fact.

The third group of questions asked how the Department would ensure that CAs would adhere to the requirements.

The Department responded that usually permits could not be issued without all the necessary documents. Where discretion was allowed and the permit issued without all the documentation present, the documents had to be provided as a condition of the permit. If they were not provided, the permit would be rescinded. Thus, there was pressure on the applicants to provide all the documentation even in such cases.

Discussion
On the issue of regions, Mr Chauke stated that the Department had wanted to restructure when the Immigration Bill was considered. The Committee had rejected this since the restructuring of the Department was not appropriately dealt with in the Immigration Bill.

Ms Van Wyk stated that when the Committee dealt with the Immigration Bill, they said that the Department must come to the Committee with a proposal to restructure and not do it in the Immigration Act. The Regulations appeared to be camouflaged restructuring.

Adv Lambinon responded that the Department could not issue Regulations extraneous to the Act. Restructuring is a prerogative of the Minister and he had ordered an organogram study of the Department - the first since 1995. Restructuring was thus being attended to independently of the Immigration Act.

Mr Chauke said he knew that restructuring was the prerogative of the Minister but it remained clear that it was being brought in through the Regulations.

Adv Lambinon replied that the Department was not trying to sneak anything in. He added that restructuring was done in terms of the Minister's prerogative, based on the requirements of administering the Act. He said he would gladly respond in writing.

Mr Chauke noted that there were laws that dealt with restructuring.

Mr Chauke stated that it was understood that immigration would be dealt with centrally when the Committee dealt with the Immigration Bill. However, with the Regulations, the power to issue permits was regional not central. He asked how each region could be controlled.

Mr Schravesande (Acting Chief Director: Migration) replied that the control of issuing permits had been substantially simplified under the new Regulations.

A Member suggested that the title of regional director be changed to distinguish them from members of the civil service at the Director level.

Mr Sikhakhane responded that it was not a question of changing the name of the position. The gist of the matter was that what appeared in the Regulations was what the Committee had deleted from the Bill. It is the regional directors that will authorise permits, not the head office. However, there was nothing in the Act that referred to regions. He said that he had no objection to regional offices as long as forms were processed through to the head office.

Mr Pretorius stated that regions were more practical and so he had no problem with them if they were legal. He noted that the Immigration Act is more prescriptive than the Aliens Control Act, so there is less discretion available to the regional offices than under the present system.

Ms Van Wyk also had concerns about the regions, though accepted them if the final issuing of permits was done at the head office.

Mr Lekgoro asked the Department officials how far the regional offices could go in issuing permits.

Adv Lambinon replied that under the current Act, regional offices issue permits. Under the Immigration Act, there was greater central control since only certain dedicated officers could issue permits.

Mr Schravesande added that the Immigration Act gives the functions to the Minister, Director General and Department. He cited the case of the visitor's permit, which the Act said was issued by the Department. The Department had to create a person to issue such permits, the regional directors, who issue permits issued by the Department. He understood that when the Committee had deleted the Clauses referring to regions and that the intent had been that this be dealt with in the Regulations, not the Act.

Mr Chauke responded that Mr Lekgoro's question had not been answered. It was clear, in terms of Regulation 14, that the regional offices could do everything. It was not specified that regional directors could only issue permits that were the function of the Department.

Adv Lambinon stated that the Department would prefer questions in writing.

Ms Schravesande replied that the regional director's powers were set out in Regulation 14(4)(a)-(h).

Mr Sikhakhane asked if anything would go to Pretoria when a person applied for a permit at a regional office.

Mr Schravesande replied that nothing would go to Pretoria except under (e), (f), (g) and (h) of Regulation 14(4).

Mr Pretorius asked if the Department would issue a memorandum to officials to ensure uniformity in issuing permits.

Mr Schravesande replied that directives and codes would be issued and that there was ongoing training of officials and that this would address uniformity.

Ms M Buthelezi-Oliphant (ANC) said that she accepted regional applications if the head office issued the permit. She compared the proposed Regulations with the case of identity documents, which were issued in Pretoria and yet under the Regulations passports would be issued regionally.

Adv Lambinon responded that regional offices currently issued permits.

Mr K Morwamoche (ANC) asked if the Department was prepared to remove Regulation 14.

Mr Skhosana stated that he was concerned about members of the Department representing themselves in Court and that Regulation 14 was not in line with the Act.

Adv Lambinon responded that it was obvious that the people with the knowledge and records of the case should represent the Department in court, with head office support.

Mr Chauke responded that it was clear that the Committee did not agree with the Department on Regulation 14. Since the matter was ongoing, the Committee would continue to engage the Department on this matter.

Mr Chauke proposed that the Department be allowed to complete their work on the questions submitted and that a liaison be established between the Committee and the Department. A programme had to be developed to guide the on-going process.

Adv Lambinon responded that the Department could undertake to have a written response to the submitted questions and questions raised sent to the Committee secretariat, by the end of business that day.

The Acting Chair agreed that the written response should be sent to the Clerk.

Mr Grobler stated that he thought matter were 'on track', but he wondered how long they would take. A schedule should be set.

Mr Pretorius asked how long it would take to issue permits currently issued by regional offices at the head office instead, should regional issuing be rejected.

Adv Lambinon responded that it was impossible to centralise the task given current numbers.

Mr Chauke and other Members of various parties objected and this was ruled out of order.

Mr Chauke proposed that the Committee return with a draft schedule at the next meeting, to be compared with the Department's schedule.

This was agreed and the meeting was adjourned.

Appendix:
Department Response to Questions from Members of the Home Affairs Portfolio Committee

During its meeting of February 18, 2003, the Portfolio Committee indicated to the Department of Home Affairs [DHA] that the DHA should answer questions put to it in writing by the Committee's members in respect of the immigration Regulations ["the Regulations"]. It was said that such questions should be conveyed to the DHA by no later than 12h00 of February 21 to enable the DHA to research and adequately formulate the relevant answers. However, the bulk of the questions only reached the DHA by l2hOO of February 24 Therefore, this presentation was formulated without the benefit of sufficient research and the DHA may need to supplement it at a later time

BACKGROUND

The drafting of the Regulations has been the product of a laborious process which has involved several dedicated task groups of DHA officials, several workshops and seminars The adoption of Regulations during the transitional period is necessary because since the time of their publication, thousands of officials in South Africa and abroad had to be trained in their application and hundreds and thousands of copies of the new forms had to be printed and distributed throughout the country and, indeed, the world. This process has required months of intensive work and the co-operation of many departments and offices.

The Regulations are regulations adopted during the transitional period in terms of section 52 of the Immigration Act, 2002 (Act No.13 of 2002) ["the Act"]. The President has proclaimed that the bulk of the Act shall come into force on March 12, 2003. In order for the Act to come into force, regulations are required. Unless on March 12 regulations are in place and thousands of DHA's officials are trained to administer them, there will be no function of migration control as on that day the Aliens Control Act will be repealed, and this is a unstoppable sequence of events. Mindful of the need for regulations when the Act comes into force, section 52 of the Act provides for a simplified process for the adoption of regulations for the period preceding the coming into operation of the immigration Advisory Board [AB]. The [AB] must be fully operational within 90 days of the coming into force of the Act, the first provisions of which came into force on February 20, 2003. Therefore, the lAB must be operational by no later than May22, 2003. Once the lAB is in operation, regulations can be adopted in terms of section 7 of the Act.

The 'AB is the venue in which the many stakeholders within Government and civil society meet and discuss policy issues. It is the centre which receives and processes public inputs and comments It is envisaged that once the lAB can perform its function, the Regulations adopted during the transition period will be the basis on which the lAB will begin a new process to determine the extent to which such Regulations require change and modification. The existing Regulations will be republished as a draft on which the process

contemplated in section 7 of the Act may take place, albeit they are in force and effect. The lAB will receive comments and will reformulate such Regulations as required, tabling subsequent drafts in Parliament as set out in section 7 of the Act.

The existing Regulations are basic in many respects, and limited in scope. It is admitted that certain of is features will need to be further refined, such as in the case of the classifications supporting the quota system or the structuring of the training levy which may be differentiated on the basis of categories, rather than being a flat fee, as at present. The DHA did not wish to introduce these levels of complexity without the benefit of the role that the lAB performs within the new system and broader public consultation. However, it is hoped that through further stages of policy formulation centred around the lAB, the schema set out in the Regulations may be refined and filled with a much greater measure of detail and specific requirements aimed at increasing customer satisfaction and satisfying national interests


THE CAPE HIGH COURT RULING
The ruling of the Cape High Court was based on the finding that the Presidential Proclamation bringing the Act into force was not published. The President duly signed the Proclamation and executed it. But, because of an unacceptable clerical mistake, the document signed by the President never reached the printers. A number of actions, including the issuance of the Regulations, were adopted on the reasonable assumption that the Proclamation had been published, as routinely happens. The court found that because of the failure to publish such Proclamation, all such actions were a nullity. The court did not 90 into the merits of the Regulations nor the process employed for their formulation and adoption.

Following the Cape High Court ruling, the process had to start from scratch. The President executed a new Proclamation which was duly published, bringing relevant sections of the Act into force as per February 20. The Minister reapplied his mind to the issue, made certain changes to the previously published Regulations, and made new Regulations which were published on February 21th On February 24, the Minister again published a notice inviting public nominations for the lAB. None of the changes made to the Regulations are material to the answers contained in this document, unless otherwise noted.

For brevity's sake, questions relating to the same subject matter have been grouped
ANC MEMBERS:
Definitions
Can the Department explain the issue of the region as stipulated in the Regulations? How
wilt those regions be structured?

The powers that are assigned to the Regional Director; how are they going to be monitored to ensure that corruption does not creep in?

Powers of the Department
Explain this entire clause?

MS A VAN WYK:
What are the reasons for again referring to regional reform as it is mentioned In the Act?

During the Portfolio Committee discussions leading to the adoption of the Act, a section of the text of the Immigration Bill was deleted because the Committee indicated that it covered a matter which did not belong in legislation and had to be dealt with in regulations. The Act was drafted ascribing powers to a "Department", rather than to the "Minister". Therefore, it is legally necessary to identify how the Department expresses such powers and functions. The standing policy in this field has been that of regionalising the administration of migration control, which is a function requiring a regional dimension. In fact, there is need for greater Co-ordination between the DHA and the Department of Labour, which also operates on the basis of regions. Moreover, information relating to grounds on which permits are to be issued, such as prevailing levels of remunerations in the marketplace, vary on a regional basis.

The DHA has instructed its business and management development section ["work study"] to prepare a submission to the Minister on how new regions are to be formulated. However, in terms of the Act, the Minister can only make this determination once he receives the recommendation of the lAB, which is necessary because this matter must be the product of inter-departmental co-ordination to ensure coordination with other departments whose operations are also regionalized, such as Safety and Security or Labour. Inter-departmental meetings are already taking place to finalize this matter.

The regions will carry the responsibility of issuing permits and detecting, preventing and redressing illegal immigration. They will not be structured much differently from the existing regions of the DHA. However, the possibility of splitting Gauteng into two regions to follow the structure of the Department of Labour is being considered. The head of a region will be a person appointed for that purpose by the Minister, who is identified in the Regulations as the Regional Director. This identification does not necessarily coincide with a specific rank in the civil service hierarchy, which may vary depending on the demands of the post and the recommendation of the DPSA and DHA's work study.

While the role of regions will be that of administering the Act, the role of Head Office will be that of monitoring, building capacity, policy formulation, ensuring uniform application and detecting corruption. At present, Head Office is involved in the administration of the law, and its officials have little time or capacity to monitor lower or regional levels of the DHA. By splitting execution from control, corruption will be prevented to a greater extent and efficiency will be increased by building additional capacity so that those with greater expertise do not do the work themselves, which creates congestion and delays, but rather train, assist and build capacity in regions, monitoring what happens there.

The Regulations employ the headings of the Act to facilitate the correlation of their

provisions with those of the Act. The heading of regulation 14 does not provide powers as the regulation merely indicates how the powers ascribed by the Act to the Department are to be utilized and expressed As a legally amorphous entity a "department" cannot express powers

ANC MEMBERS:
Applications
The role of Chartered Accountants needs clarification Is it concurrent with the Immigration
Act? If so, how?

The DHA sees no inconsistency with this Regulation and the Act. The role provided in this Regulation for Chartered Accountants flows from the provisions of the Act.

In terms of the Act, Chartered Accountants provide certifications of facts and circumstances which otherwise would need to be ascertained through laborious processes by the DHA, and in respect of which the DHA often does not have sufficient skill or capacity to perform such task. The Regulations give deadlines to the Department to process applications, once the application is completed, but this can only take place if the Chartered Accountant has performed his or her function, so that the DHA's task is limited to reviewing the correctness of the paperwork in the application without having to engage in external evaluations, often requiring consultation and engagement of other organs of State. lt must also be noted that in terms of the Act, the definition of Chartered Accountants may include other accountants recognized under any law.

Clause 2.16 - How are you going to make sure as the Department that such individuals adhere to this clause?

As a rule, a permit cannot be issued unless the documentation is complete, but sub regulation 2(16) enables an exception in which case a note will be made to the file and to the electronic records that further action is expected on that case. If the documentation is not supplied, the permit will lapse and the foreigner will be notified accordingly, the risk of which should prompt him or her to adhere to his or her duty to provide the required documentation which is effectively an additional permit condition. This sub-regulation provides for a discretionary power which the DHA shall use when warranted under the circumstances.

Marriage
Clause 5: Can the Department explain this in relation to the immigration Act?

Section 1(1 )(xxi) of the Act requires regulations to identify what is a "marriage" in respect of legally sanctioned conjugal relationships taking place in a foreign country. This regulation complies with such requirement by listing in Schedule H all the types of foreign marriages which the DHA researched with great difficulty. Since such list cannot be exclusive and the matter is always subject to amendments somewhere in the world, provision is made for countries or situations which are not addressed in Schedule H. Simply put, permits are due to those who have entered into a foreign marriage and the DHA needs to identify when a foreign marriage exists and what documentation is required to prove its existence.

Port of entry
Clause 7.4 - the issue of fees. What does the clause intend to achieve?

Most ports of entry have a 24 hour, seven days per week service schedule, such as is the case for international airports. However, in most ports of entry there are working hours, as is the case for most government services This clause intends to avoid that somebody calling at a port of entry outside of official hours, needs to wait until the office re-opens, which may be the day after, or after a weekend or a holiday. In making such provision the regulations abide by the prescript of section 2(1)(k) of the Act which requires the DHA to "administer the prescribed fees, fines and other payments it exacts or receives in such a fashion so as to defray the overall cost of its operation". Prescribed fees are those set out in regulation, as the one contemplated in this case.

other conveyance
Can the Department explain the entire clause n relation to The Act?

Section 1 (1)(xxxv) of the Act requires that "other conveyance" be identified in regulations to fall under the definition of "ship". For purposes of the Act, a ship is that which carries a foreigner and should not be taken literally Because the extension to any conveyance may lead to absurd situations, the regulation limits its application only to that which is both "reasonable" and "practical".

Visa and examination
Clause 10.5 - can the Department clarify this clause in relation to clause 10 and 25 of the
Immigration Act?

Sub-regulation 10(5) is mindful of the difference between visa and permit and wishes to avoid the situation in which somebody who would qualify for a temporary or permanent resident's permit contemplated in sections 10 and 25 of the Act is prevented from securing one by not receiving a visa. A visa is the authorization given to a foreigner to report to an immigration officer for an examination where such foreigner may obtain a permit (section 1(1)(xlii) of the Act.

Immigration Advisory Board
Clause 15- explain this clause in relation to the Immigration Act.

MS A VAN WYK
Regulation 15

Why is there a difference in the functions of the immigration Advisory Roard in the Regulations as compared to the functions stipulated in the Act

Regulation 15 is called for by section 4 of the Act and does not provide for any function of the lAB but merely states how the functions set out in the Act are to be exercised. Nothing in the Regulation creates functions. In terms of section 5(a) the lAB has the function to 'advise the Minister in respect of the formulation of policy pertaining to immigration matters", while in terms of sub-section (c) the lAB advises the Minister in respect of how the DHA implements such policies. Section 4(3)(d) provides for the lAB to perform its functions by means of committees, while section 4(9) indicates that regulations are to determine how the lAB operates. Accordingly, this regulation provides for a number of committees in respect of matters and DHA's responsibilities which are set out in the Act. This regulation also deals with other matters relating to how the lAB operates, thereby fulfilling the statutory requirements of section 4. Such matters are necessary for the functioning of the lAB. The division amongst committees reflects line function and interests grouping and is relevant because most members of the Board have specialized interests. For instance, the representative of the Department of Education might not have an interest in dealing with operational matters relating to law enforcement or coordination of border control functions. There are also components such as Business and Labour which are more interested in matters relating to work permits. A committee structure enables people to attend to matters in which they have an interest, enabling the lAB to work through what is going to be an extremely broad and complex agenda of issues which such a lage body as the lAB could not possibly process efficiently.

ANC MEMBERS:
Temporary residence permit
Clause 18.3-can the Department explain the issue of good cause in clause and wherever
it appears.

Good cause is a notion set out in the Act which is defined in regulation 1 {1)(e) ~s a "balanced relation between the circumstances of the case and the action to be taken in which the action is justified, equitable and consonant with the objectives of the Act". Effectively, it is a bridge between the objectives of the Act and the discretionary actions of the DHA to ensure that discretion is exercised to fulfil statutory goals and objectives. This clause also provides for guarantees as those adversely affected may challenge the DHA for having exercised a discretion in a manner contrary to its stipulations. It prevents the DHA from acting in an arbitrary fashion granting or denying benefits without good cause, and it expresses greater adherence to human rights protection. When processing the Immigration Bill, the Committee requested that operational parameters be developed in regulations in respect of the statutory notion of "good cause.

Diplomatic permit

Clause 21.5 needs explanation

Diplomatic permits are issued on the basis of documents and stamps determined by the Department of Foreign Affairs (DFA). However, the Act requires that all relevant application forms be set out in regulations. Therefore, pending the DFAs action, which thus far has not been forthcoming, this regulation establishes a bridge between the present time and when the OFA will publish its prescript in respect of diplomatic permits, which one hopes to be done shortly. It should be noted that when the regulations were re-issued an additional sub-regulation (6) was added to fill the lacuna relating to the DHA issuing these permits as provided for in section 12(1) of the Act, thereby authorizing the DHA to use the same specimen and documentation prescribed by the DFA, which avoids duplication and possible confusion.

Retired persons permit
Clause 29. How did the Department come to these kinds of figures? How does this clause relate to the Immigration Act?

MS A VAN WYK:
Regulation 29
What was the criteria used to arrive at the figures of R25 000 per month and R15 000000
in order to qualify a retired person permit?

Responding to public criticism, when applying his mind to the issue and again making the Regulations, the Minister has reduced this figure to R 20 000 and R12 million respectively. There has been a great deal of public debate on this issue which has wrongly identified this category as if it were the only one available for long-term visitors, and incorrectly suggested that the conditions for long-term stays have been made harsher. The truth is that this is a new category of permits which, does not replace but merely supplements, the other categories of permits which are still available. Any permit available to them in the past will be available in the future on better conditions. The old visitor's permit had to be renewed often, but it can now be issued for up to three years merely by showing that one can provide for his or her living expenses, calculated at R15 000 per month. To satisfy this amount, one may include the rental value of property owned in South Africa, which has been clarified in the new regulations the Minister made.

If people wish to retire on such visitor's permit, they may do so without resorting to a retired person permit. The advantage of the retired person permit is that it does not need to be renewed as often, it is for a longer period, and its supporting documentation is acquired only once, facilitating any further renewal The retired permit also accommodates better repeated seasonal tourists. Very few countries have this type of permit and a South African could not stay in the United States, Canada or most European countries merely on the grounds that I wish to retire there"

financial threshold is necessary to justify why foreigners who are not spouses
relatives or employees of any South African nor investors should be accommodated in our country for a very long stay. This justification lies in their potential financial contribution to offset the cost of their being here. In fact, retired people and long-term visitors do not pay direct taxes yet they are a cost to the State as they consume a proportion of State services ranging from defense to policing, roads, medical services, infrastructures etcetera. The only taxes they pay are indirect, such as VAT. Therefore, our national interest in having these long-term non-working visitors hinges on their capacity to make a contribution through their spending, hence the minimum financial requirement.

Nonetheless, in terms of section 31(2)(d) of the Act, these requirements may always be waived or reduced for good cause, which creates greater flexibility. A rule cannot accommodate all possible exceptions, which must be dealt with as exceptions.

Undoubtedly, on details of this nature debate will need to continue and th~s is the very function of the lAB which will gather in one place all relevant stakeholders in a structured dialogue aimed at reaching out for further public comments and consultation.

ANC MEMBERS
Asylum permit
Clause 32 needs a thorough explanation

Section 23 of the Act provides for a category of foreigners who are seeking asylum. By definition, these foreigners do not qualify for any other permit and yet need to have a permit to move from a port of entry to a refugee reception office and during the time whilst their application in such office is pending, otherwise they would end up being in the Republic without a permit or a status This permit bridges the gap between the time at which they enter the Republic and the time at which they fall within the scope of application of the Refugees Act. This regulation merely implements section 23 of the Act.

Exemption.
Clause 36 needs explanation

Regulation 36 does not create exemptions but relates to the section of the Act which provides for exceptions. This Regulation merely provides operational details relating to Section 31 of the Act providing guidance on how those seeking the benefits of section 31 of the Act are to approach the Minister and put forward their application.

Deportation and detention of Illegal foreigners
Clause 39.9. b needs thorough explanation. What is judgement creditor?

In law, a judgement creditor is someone who has a judgement against another person and can, therefore, seek the cooperation of the relevant organs of the State to execute that judgement to recover the relevant debt. This provision has the function of ensuring that the State may recover what is due to it by those who contravene the provision of the Act. It is common in other legislation.

Miscellaneous
Explain clause 50.3 in relation to the issue of control of national borders and how does it relate to the Constitution?

The Constitution requires that border control shall be a function exercised by an organ of the State, other than the SANDF, identified by a law. Until the passing of the Act, the imperative of this constitutional provision had remained unfulfilled. In terms of section 36(1) of the Act the DHA now "shall control the entry and exit of people through the borders of the Republic in order to ensure compliance with this Act and may do so with the assistance of other organs of State" As expected of regulations in general, Regulation 50(3) brings into operation and details such provision of the Act, identifying how and under what conditions the statutory provision is to be utilized by the DHA. ln so doing it aims at creating additional guarantees.

The DHA has also received from the Secretary of the PortfoIio Committee two submissions from private organizations directed to the Chairperson of the Portfolio Committee Obviously, it would be inappropriate for the DHA to answer that which is directed to the chairperson of the Committee, especially in light of the DHA having to answer only questions received in writing from the committee's members. Nonetheless, the DHA must point out that a submission received by the person working for Price Waterhouse Coopers is inaccurate in a variety of respects and confuses a number of things.

For instance, in respect of the so called training fee, it must be pointed out that work permits are not always subject to a training fee. It is completely optional for the foreigner to choose this option. A foreigner may chose to pay such fee or may choose to demonstrate that there is no South African national ready, willing and able to fill the relevant position. This option is available both in respect of permits issued under the quota system and in respect of general permit its. In addition, there are about ten cases in which the training fee can be waived or does not apply. Provision for a training fee fulfills point (j) of the Preamble of the Act and section 2(1)(j)(i) of the Act, while sections 1(1)(xl),
2(2)(a) and 2(2)(g)(i) of the Act specifically contemplate and require it.

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