Deputy Minister request for Immigration Act amendment on people who overstay or are illegal foreigners

Home Affairs

18 November 2015
Chairperson: Mr D Gumede (ANC) (Acting)
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Meeting Summary

Parliamentary Legal Advisors, in the presence of Ms Fatima Chohan, Deputy Minister of Home Affairs, presented to the Committee a legislative proposal to introduce a Committee Bill to amend the Immigration Act 13 of 2002 in terms of National Assembly Rule 230(1). Members were briefed on the rationale for the proposal which was due to section 30(1)(h) which, in practice, opened itself up for interpretational challenges. Section 30 would be amended to allow for declaration of a person who overstayed as an undesirable person.

Members felt that amendment was necessary but expressed their concern about those people who might overstay through no fault of their own. Mr Chohan responded that in such case a foreigner who was declared an undesirable person could apply for uplifting such declaration subject to showing a good cause.
 

Meeting report

Mr D Gumede (ANC), elected as the Acting Chairperson, stated that Members had convened to consider and adopt the submission of a Committee Bill amending the Immigration Act, 2002. He noted that there were issues that were raised by Mr M Hoosen (DA) in the context of seeking clarity and these issues would be responded to. Both Parliamentary Legal Advisors and Ministry would provide their inputs to facilitate a decision on the need to adopt the submission.

Briefing by the Parliamentary Legal Advisor
Ms Daksha Kassan, Parliamentary Legal Advisor, noted that there was a challenge of interpretation in respect of section 30(1)(h) and section 32 of Immigration Act, 2002 dealing with persons who have overstayed their visa and illegal foreigners respectively.

Some have interpreted section 30(1)(h) to means that a foreigner must have overstayed on more than one occasion. The true intention of section 30(1)(h) is that even one instance of overstay is not acceptable. The true intention is reflected in Regulation 27 of the Immigration Regulations (of 22 May 2014): a person is declared undesirable for a certain period of time even where such person has overstayed for the first time.

Addressing the interpretation challenges, the Department now proposes that section 32 (dealing with illegal foreigners) be amended by inserting a new clause that reads very similar to section 30(1). Proposed amendment to section 32 states: An automatic disqualification for certain visas for a prescribed period where persons have overstayed (whereas section 30(1) provides for a declaration); Foreigners who have overstayed to be treated as a category of illegal foreigners. Section 30(1)(h) could then be retained to be used by the Department for persons who have repeatedly overstayed. The amendment would state:
“32(1A) Illegal foreigners who have overstayed, as prescribed, do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit during the prescribed period.”

The proposed amendment to section 32 would allow an automatic disqualification for certain visas for a prescribed period whereas amendment to section 30(1) would allow the treatment of overstayed foreigners as a category of illegal foreigners. Section 30(1)(h) would then be used to refer to persons who have repeatedly overstayed.

Ms Fatima Chohan, Deputy Minister of Home Affairs, stated that she was present so that she could clarify certain matters. She supported an expedited procedure for adopting the Bill. It would be in the public interest if the Bill could be passed in the year 2015.

The Chairperson nodded and said it was up to Members to approve. He sought clarity from Members whether or not Ms Kassan should read through the Memorandum.

Ms S Nkomo (IFP) firmly suggested that Ms Kassan should read the Memorandum, stating that she could not see any objection from doing that.

Ms O Hlophe (EFF) supported Ms Nkomo and sought clarity on the overall procedure for the adoption of the Bill.

Ms Kassan replied that the adoption procedure was outlined in slide 9. She proceeded to read though a three-page Memorandum for the submission of legislative proposal in terms of the Rules of the National Assembly.

After the reading, the Chair thanked Ms Kassan for her professional inputs.

Discussion
Ms Hlophe sought clarity on the questions posed by Mr Hoosen, in particular, what would happen in a situation where a person overstayed due to illness or, in other words, when persons overstayed through no fault their own. Could a person – in such situation – be punished?

The Chairperson responded that he had looked at section 30 of the Immigration Act and that provision listed different categories of undesirable persons. However, in terms of section 31(2), a person who was declared undesirable could be exempted by the Minister upon application.

Ms Chohan explained further that she expected that a person who was declared undesirable – but who could show good cause – could apply for such declaration to be uplifted. Such application could be filed by a foreigner in question whilst in his or her country in cases where he or she had already returned or been deported. An application could also be made at port of entry.

The Chairperson agreed. He noted that Members were aware of the defects the proposed Bill would remedy and thus requested them to move to adoption the legislative proposal.

Dr C Mulder (FF+) moved for adoption.

Ms Mnisi seconded Mr Mulder.

Ms Chohan requested the Committee to give the green light to the Parliamentary Legal Advisor to draft the Bill, even though the proposal was not yet submitted, considered and approved by the House.

.Ms Nixon sought clarity on when the proposal could be submitted to the House.

Mr Mathonsi responded that it should be submitted by the following week.

The Chairperson announced that the request made by Deputy Minister Chohan was approved by Members. Parliamentary Legal Advisors should move on to draft the Bill.

The Chairperson thanked Deputy Minister Chohan for her time and especially her commitment to ensure that the country was safer. The Committee acknowledged her outstanding work.

Meeting was adjourned.

 

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