Immigration Amendment Bill [B5-2016]: briefing

Meeting report

The Chairperson explained that because the Bill had been introduced by the portfolio Committee the presentation would be done by legal advisors of Parliament.

Immigration Amendment Bill [B5-2016]
Ms Daksha Kassan, Parliamentary Legal Advisor, took the Committee through the presentation.

Background
Interpretation challenges in respect of section 30(1)(h) of the Immigration Act, 13 of 2002 (“the principal Act”). The current wording of section 30(1)(h):
“30(1) The following foreigners may be declared undesirable by the Director-General, as prescribed, and after such declaration do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit:
 (h) Any person who has overstayed the prescribed number of times.” S 50(1) of the Immigration Act, 13 of 2002 – before any amendments made thereto – had provided that foreigners who left the Republic after the expiry of their permits (now referred to as visas) would be liable to an administrative fine not exceeding R3000.However, the administrative fines imposed were found to no longer serve as a deterrent, hence a proposal was made to amend section 30 of the principal Act so as to declare such foreigners who overstayed as undesirable.

Interpretation challenges
In practice, the current wording of section 30(1) (h) was interpreted by some to mean that a foreigner had to have overstayed on more than one occasion before he or she could be declared undesirable whereas the true intention behind section 30(1) (h) had been to declare a foreigner undesirable even upon one instance of overstay. The intention had been reflected in Regulation 27 of the Immigration Regulations (of 22 May 2014) – which provided for a person to be declared undesirable for a certain period of time (depending on the length of his or her overstay) even where such person had overstayed for the first time.

Addressing the interpretation challenges
Initially proposals had been to amend section 30(1)(h) to reflect the true intention; however, in subsequent consultation with the Department of Home Affairs it had proposed that section 32 (dealing with illegal foreigners) be amended by inserting a new clause that would make it clear that foreigners that overstayed their visa would be sanctioned.
The proposed amendment to section 32 was that it needed to contain an automatic disqualification for certain visas where persons would have overstayed because section 30(1) provided for a declaration only: that Foreigners who overstayed be treated as a category of illegal foreigners. Additionally, section 30(1)(h) be retained in the Act to be used by the Department to declare persons, who would have repeatedly overstayed, as undesirable.

Content of the Bill  
In terms of Subsection (1B), the Principal Act (Act no 13, Immigration Act, 2002) provided that if anyone was within the Republic on a valid Visa and the Visa expired whilst the individual was still within SA borders; the individual was obligated to regularise their stay within the republic. That meant that individual had to go to the Department of Home Affairs (DHA) to extend the Visa. If, however, the individual had decided to leave and on their way to the airport became involved in an accident, as there would have been no time to regularise their status, the said individual would be disqualified upon leaving the Republic as per subsection (1B) however; he/she would have recourse to apply to the Director-General (DG) of home affairs to waive the disqualification as there would have been a valid reason for not extending the Visa whilst in SA.

Discussion
Ms L Zwane (ANC; KwaZulu-Natal) asked for clarity as to whether the period of disqualification would be determined during regulations development or had it already been determined?

Ms Mpambo-Sibhukwana (DA; Western Cape) said she had followed the case of a Zimbabwean Student that had had a three-year study permit. Upon deciding to further his studies how long would the process to get an extension on his Visa generally take? Because the specific case she had been referring to involved a student that had to date been waiting for six months to get that extension before registering at Rhodes University.
She also asked the legal advisors to unpack the term ‘undesirable’ as used in the Act, as it was too ambiguous in terms of how she heard and read it.

The Chairperson asked the legal advisors to explain the rationale starting with section 30(1) (h) of the Principal Act to then ending up amending section 32 instead. She also wanted to know why there was such differentiation between a person who had simply failed to renew on time and that which had failed to do so because of exceptional circumstances.

Ms Kassan replied that the current interpretation challenge was with section 30(1) (h) which allowed the DG to declare a person undesirable if said person had overstayed a number of times within the Republic. When the Department of Home Affairs (DHA) had amended the principal Act in 2011, the intention had been for that to include persons that had overstayed on one occasion. With the interpretation challenge, it had then been decided through consultation that persons that had overstayed in the Republic were technically illegal immigrants. In that regard the recommendation had been that it would be better to amend section 32 of the Act, which dealt with illegal immigrants. The Amendment also provided for automatic disqualification.
Therefore, those individuals that simply overlooked application for extension on their Visas would be illegal in the country. When they finally left, long after their Visas had expired, those individuals would be disqualified from accessing SA for a certain period.
The period of disqualification would then be determined in the regulations: which was why it was written ‘anyone who had overstayed as prescribed’. ‘Prescribed’ would mean that if one had overstayed for one month the regulations would determine what the disqualification period would be. Therefore, after the three months’ disqualification period had elapsed the immigrant could then apply for the waiver of the disqualification and a new Visa.
The DHA had then decided that section 30(1) (h) would be retained within the Act for individuals that repeatedly overstayed; which was a declaration of undesirability. The declaration could be for an indefinite period. It was targeted for people that came into SA, overstayed and became disqualified and then reapplied after the lapsing of the disqualification period and repeated the offence at least three times. 
Undesirability and even the disqualification were for immigrants being barred from entering SA.

The Chairperson asked whether amendment of section 32 meant that the interpretation of section 30(1) (h) would have been clarified and there would be no ambiguities.

Ms Kassan said that section 32 dealt with illegal immigrants however; persons that overstayed would be illegal immigrants. Therefore, the amendment of section 32 to provide for the category of illegal immigrants that had become so because of overstaying; those individuals would be sanctioned in terms of section 32. If they were repeat offenders in terms of section 32 then section 30(1) (h) would become in force for the declaration of undesirability.

Mr Jackson McKay, Deputy DG (DDG), Immigration Services, Department of Home Affairs, added that in terms of the terms and conditions of a permit: section 43 of the Immigration Act dealt with the obligations of immigrants. One of the provisions was that an immigrant would abide by the conditions and terms of their status. Once the immigrant did not abide by any of those conditions they then automatically would be subjected to the provisions of section 32. Section 30(1) (h) was a harsher sentence for repeat offenders.

Regarding the unpacking of undesirability: section 30 of the principal Act indicated what the grounds for undesirability were: for example anyone who would be likely to become a public charge, anyone identified as so by the Minister of DHA; anyone who had been declared judicially incompetent, unrehabilitated and insolvent; anyone who had been ordered to depart in terms of the Act, anyone who was a fugitive from justice and anyone with previous criminal convictions and any person that had overstayed the prescribed number of times.

Section 10 (6) of the principal Act provided that a foreigner or holder of a visitors or medical treatment Visa, those individuals could not extend those permits whilst in country. That had been done that way because of fraud and even litigation cases that the DHA had faced in that regard.
The study Visa however; had a time period attached to it where an extension of time was allowed provided the holder of the permit applied before expiry of the permit whilst in the country. The study Visa generally took about eight weeks to finalise and in that regard the DHA would certainly welcome more information from Ms Mpambo-Sibhukwana concerning the case she had been following so that the Department could follow that up.

Ms Mpambo-Sibhukwana asked what happened when a foreigner decided to marry a South African, in terms of the status of the foreigner.

Ms Zwane asked for clarity in terms of whether the declaration of undesirability could lead to indefinite barring of access to SA for immigrant nationalities.

The Chairperson reiterated that she required an explanation on how DHA determined the sanctioning of undesirability?

Mr McKay replied that a person married to a SA citizen whilst being a foreigner, the status remained a foreigner. What could happen later on was that permanent residence by naturalisation could occur, however, even then there were certain steps that an individual would have to follow.
If a person on a study Visa got married to a citizen of the Republic and were not studying anymore but also wanted to stay the status would change to accompanying spouse Visa, which would indicate the union. However; they still had to comply with the requirements as set out in the regulations.

Section 30 in the Immigration Act which dealt with undesirability; subsection (2) indicated that upon application by an affected person the Minister could for good cause waive any of the grounds for undesirability. If an individual was aggrieved by the DGs finding of undesirability he/she could apply to the Minister as internally provided for with the Act. Furthermore, if the individual still felt aggrieved by the Minister’s decision to retain the decision of the DG, the aggrieved individual could approach the courts for a judicial review of the Minister’s decision.

The reason DHA had said as ‘prescribed’ was that there were different categories in that regard. If a person had overstayed for two days that was something but, a person overstaying for more than 20 days that was something else as well. That was why then DHA wanted to delineate in the regulations between those categories.

The Chairperson said that the process from then would be public participation on the Immigration Amendment Bill.

Consideration of the draft third term Programme of the Select Committee on Social Services
Ms Marcelle Williams, Committee secretary, said the third term would start on 16 of August. The Committee had:
To finalise The Department of Human Settlements (DHS) regulations.
 Two Bills that had been referred to it. The first was the Children’s Second Amendment Bill which was a section 76 and the other was the Children’s Amendment Bill which was a section 75 Bill.
On the 16th the Committee would be briefed on the DHS regulations and the section 76 Bill and also deliberate and finalise the Immigration Amendment Bill which the Committee had been briefed on. The 76 Bill encompassed the six weeks cycle and the following Tuesday 23 August 2016 there would be a plenary of the NCOP in the morning. Members would also be afforded an opportunity to go to their provinces to brief legislatures on the 76 Bill which would be week two of the cycle for that Bill.
 
The following week 30 August 2016, would be local government week where the Department of Social Development (DSD) would be briefing the Committee on the 75 Bill and simultaneously provinces would be holding public hearings on the 76 Bill. There would be two weeks of public hearings as provided in the six-week cycle. The week of the 6-9 September 2016 would be oversight week where the Committee would be discussing its oversight to Limpopo. The week of the 13-16 September would be the NCOP provincial week where there would be no meetings as members would be in their respective provinces. The week of the 20-23 September would be week five of the of the Children’s Second Amendment Bill where mandates would be negotiated on the Bill; additionally, the Committee would be deliberating and finalising the Children’s Amendment Bill.
By then the Committee would have finalised two Bill including the Immigration Amendment Bill. There would then be the constituency week, thereafter the Committee would meet on the week of the 4-7 October 2016 and finalise the Children’s Second Amendment Bill.

Mr Mkhululi Molo, Committee researcher, said the Committee would be going to Vhembe District Municipality as they had identified Beit Bridge as an area of focus for the Committee’s oversight as it was 12 kilometres from Musina, Limpopo. Vhembe Municipality was amongst the areas where the National Health Insurance (NHI) pilot projects were running which would be the focus of the oversight together with the DHA office in that region.
Additionally, the Committee possibly would be focusing on water and sanitation together with Human Settlements as well. Regarding water and sanitation there were two possible focus areas one was in Giyani, Mopani District and the other would be the community resettlement as part of the Nandoni Dam in Vhembe. The Department of Water and Sanitation (DWS) had worked quite closely with the Mopani District Municipality to address the water challenges in Giyani. It had upgraded the waste water treatment plants however, there had been protests around access to water earlier in May in the area. 

The Chairperson said since there had been a lot of protests in Vuwani and the Committee’s portfolio being in social services and education was there anything related to the Committee which it needed to address in that regard.

Ms Thabile Ketye, Committee Content Advisor, said the Committee staff had asked their colleagues from the Committee on Education and Recreation to attend the meeting on deliberation on the Committee’s oversight to Limpopo; as they had identified Vuwani for oversight. The idea was that there could be a joint oversight for both Committees focusing on human settlement, water and sanitation and health.

Discussion

Mr M Khawula (IFP: KwaZulu-Natal) said the Committee could consider both programmes as work in progress.

Ms Zwane concurred with Mr Khawula that the Committee accept the draft as work in progress as social cohesion was the core mandate of Arts and Culture Sports and Recreation. The Committee had to also consider the distances between the places it would want to visit for oversight.

The Chairperson asked the Content Adviser from the Select CommitteeCommittee on Education and Recreation if he would want to add anything.

Mr Themba Mthethwa, Content Adviser, Select Committee on Education and Recreation, said that they had identified Vuwani for oversight which was under Vhembe Municipality however; the distance from Musina to Vhembe was about 80 kilometres.  Though that Committee’s focus was on social cohesion, more concerning was that there was currently no schooling taking place in Vuwani due to security concerns.

The Chairperson said possibly the oversight would be an opportunity to bring Sport and Recreation South Africa (SRSA), Department of Basic Education (DBE), DHA and DSD together since it had formally adopted social cohesion as one of its mandates. She then asked for the adoption of the draft programme.

The draft Committee programme was adopted as presented.

Adoption of minutes
Minutes of Committee meetings held on 12 April 2016 morning and afternoon sessions afternoon sessions of that day were adopted without amendments. Minutes for 15 March, and 10 May 2016 were also adopted without amendment.

The Chairperson allowed Parliaments Communication Support official to comment on what Parliament was doing in terms of coverage of NCOP Committees as the only Committee that was often on channel 408 was the Select Committee on Finance. She complained that that made it look as if other Committees were not doing their work.

The official apologised, that unit of Parliament was challenged in terms of staffing however: in terms of public participation on Bills, the unit normally made announcements on radio stations after advertisements had been circulated in national newspapers to encourage citizens to make submission on Bills before Parliament. That was also done on all Parliaments’ communications platforms. When their budget allowed, the unit also sought five minute slots for Committee Chairpersons on radio stations to speak to Bills before Committees however; that was subject to approval processes.

The Chairperson thanked everyone who had attended and the meeting was adjourned.