International Migration Policy Green/White Paper; Refugees Amendment Bill submissions summary

Meeting report

International Migration Policy on Green Paper/White Paper: Home Affairs (DHA) briefing
Mr Mkuseli Apleni, Director General: DHA, said the aim of the presentation was twofold: To provide an update to the Committee on the progress made by the DHA towards the development of a new White Paper on international migration and to seek input from the Committee on the content of the Green Paper.

Providing the background to the Green Paper, Mr Apleni stated that the existing policy on international migration was set out in the 1999 White Paper on international migration. It was implemented through the Immigration Act No 13 of 2002 and partly through the Refugees Act No 130 of 1998. In recent past, the DHA amended the immigration and refugee policies and implemented regulations and strategies to address glaring gaps in legislation. However, what was required was a comprehensive review of the policy framework that could inform systematic reform of the legislation. Essentially, the country’s formal international immigration policy had remained in place since 1999 despite significant changes in the country, region and world. It was against this background that the DHA had undertaken a comprehensive review of the existing international migration policy. The Minister of Home Affairs, Malusi Gigaba, had identified the development of a new international migration policy as one of the top priorities during his term of office.

Mr Apleni noted that in the 2016/17 financial year, the DHA had an Annual Performance Plan (APP) target of submitting a White Paper on International Migration to Cabinet for approval by 31 March 2017. According to the 2016/17 APP the DHA would undertake various activities in order to achieve the annual target. Activities included gazetting of the Green Paper for public consultation; hosting of a national consultative dialogue on the Green Paper; holding a national Conference on international migration; submission of the Green Paper to the Committee for debate; engagements with the NEDLAC, Organised Labour, Organised Business and Civil Society; public engagements on the Green Paper through Ministerial izimbizo; provincial MECs); drafting and approval of the White Paper on International Migration; submission of the White Paper to FOSAD clusters and Cabinet Committees for recommendation to Cabinet; and submission of the White Paper on International Migration to Cabinet for approval.

Mr Apleni noted the limitations of the existing policy and approach to regulation of international migration, its problems and root causes of those problems. He stated that the major problem of existing policy was its inability to enable South Africa to adequately embrace global opportunities while safeguarding its sovereignty and ensuring public safety and national security. The root causes of the problem included:
• South Africa had not yet built consensus on how to manage international migration for development. There was a lack of a holistic and whole-of-government and society approach.
• The DHA was regarded as the sole department responsible for the management of international migration.
• The DHA had historically been regarded as performing routine administrative functions in a low-value, low-security environment.
• The existing policy was based on an approach that is largely static and is limited to compliance rather than to manage international migration strategically to achieve national goals.
• Lack of a risk-based approach to international migration. South Africa had invested little in the effective and secure management of international migration so that risks can be evaluated and mitigated adequately.
• Little awareness of historical and geo-political contexts in the management of historic flows of labour within SADC. 

Mr Apleni noted that the new policy on international migration ought to take into consideration the following notable developments nationally, regionally and globally:
• The National Development Plan (NDP) argued that South Africa needed to adopt a more open approach to skilled immigration to enable expansion of high-skill supply for the economy in a manner that obviated displacement of South Africans.
• South Africa attracted tourists from all regions of the world because of its climate, developed infrastructure and various tourist attractions; and it has become a major venue for international events.
• South Africa had become a major destination and transport hub for the continent and the world.
• South Africa has become a platform for investment into Africa. South African companies are also increasingly expanding their businesses into Africa and other continents.
• Migrants from the African continent, as far as North Africa, were transiting through South Africa to their preferred destination countries in Europe and North America.
• South Africa continued to receive a high number of individual asylum seekers from almost all the regions of the world, including asylum seekers from countries that were politically stable.
• African countries continued to liberalise their immigration regimes in line with the African Union 2063 Vision. 

Mr Apleni noted that the new policy was built on the vision of South Africa’s need to embrace international migration for development while guarding sovereignty, peace and security. It was grounded in the key principle of South Africa’s sovereign right to manage international migration in its national interest, which includes national priorities such as national security and development; the constitutional and international commitments; and promotion of human rights, peace and stability in the world. He noted that the policy ought to be responsive to the African development agenda, to contribute to nation-building and social cohesion, to support emigration for development purposes. He was of the view that a whole of government and society management approach was the bedrock for the new international migration policy.

On management of admission and departure, Mr Apleni noted the problem as inability to manage the cross-border movement of persons, goods and conveyances in a proactive, secure and strategic manner. In response, the objective of the new policy was to entrench a strategic, modern, integrated and risk-based approach in managing a secure and efficient movement of people, goods and conveyances. He noted that total arrivals in 2015 was 15 610 272 and, by November 2016 was 14 961 579. During the 2014/15 financial year, 54 169 persons were detected and deported.  Mozambique, Zimbabwe and Lesotho nationals made up 82% of all deportations during the said financial year. Others were from DRC, Nigeria, Ghana, China, Malawi and Tanzania.

The DHA noted that the new policy was built on the vision of South Africa’s need to embrace international migration for development while guarding sovereignty, peace and security. It was grounded in the key principle of South Africa’s sovereign right to manage international migration in its national interest, which includes national priorities such as national security and development; the constitutional and international commitments; and promotion of human rights, peace and stability in the world. The policy ought to be responsive to the African development agenda, to contribute to nation-building and social cohesion, to support emigration for development purposes.

On admission and departure management, the DHA noted the problem as an inability to manage the cross-border movement of persons, goods and conveyances in a proactive, secure and strategic manner. The response was to entrench a strategic, modern, integrated and risk-based approach. Total arrivals in 2015 was 15 610 272 and for 2016 it was 14 961 579 by November 2016. During the 2014/15 financial year, 54 169 persons were detected and deported.  Mozambique, Zimbabwe and Lesotho nationals made up 82% of all deportations during that financial year. Others were from DRC, Nigeria, Ghana, China, Malawi and Tanzania.

The problem with the existing policy on residency and naturalisation was that it enabled holders of certain visas to automatically graduate to permanent residency and later to citizenship on the grounds of years spent in the country. The approach was mechanical and did not allow the granting of residency or naturalisation to be used strategically. As a result, some foreign nationals that had been granted permanent resident status and citizenship who did not contribute to the national development agenda of the country. For that reason, the process of granting residence and citizenship status to foreign nationals should be based on strategic and security considerations and the national priorities of South Africa. Temporary visas granted between 1 June 2014 and 14 Jan 2016 were 121 237. The most visas granted were the relative/spouse visa type (24%), followed by study visa (18%), followed by visitor visa (14%), followed by general work visa (10%). Application of permanent residence for that period was 30 098. Permits applied for on the basis of being a spouse were 9 975, representing 33% of all permanent residence applications received whereas those applied on the basis of refugee status were 1 115, representing 4%.

On the management of international migrants with skills and capital, DHA noted that the existing policy limited the country’s ability to compete internationally for skills and investment. Therefore, the new policy would focus on attracting and retaining high-valued migrants; including the fast-tracking of the granting of permanent residence permits and naturalisation.

On management of ties with South Africa expatriates, the existing policy did not enable South Africa to proactively manage and harness emigration for development. In response, the new policy would establish an institutional capacity within the state to proactively manage and harness emigration for development. 

On management of international migration within the African context, the problem identified with the existing policy was its limitation of the country’s ability to manage international migration in line with the African development agenda (AU 2063 Vision). The new policy would support the vision of an Africa where its citizens could move more freely across national borders, where intra-Africa trade was encouraged and there was greater integration and development of the African continent.

On management of asylum seekers and refugees, the DHA noted that the main problem was that South Africa experienced high volumes of mixed migration flows that tended to utilise the asylum regime to regularise their stay in the country. This was evidenced by the fact that only about 5% of the claims for asylum were successful since most of the applicants were economic migrants. To address this problem, the new policy would establish a mechanism of providing effective and efficient status determination and protection services to genuine asylum seekers and refugees while limiting the abuse of the system. 71 914 asylum applications were registered in 2015 whereas in 2014 the figure was 70 010.

On management of the integration process for international migrants, the DHA said that South Africa had not adopted a clear and coherent integration policy for the integration of foreign nationals in the country’s value system and population. That was a problem. The new policy would work to establish a secure, strategic and integrated approach for this.

On capacity of managing international migration, the DHA said that the need for a ‘whole of government and society’ approach for the management of international migration was one of the main themes of the Green Paper. The first theme was that international migration policy was cross-cutting and required an inter-sectoral governance approach for it to succeed. The second theme was that DHA needed to be capacitated to lead in the implementation of national policy and administer immigration legislation strategically and professionally. Thirdly, at the heart of the argument developed in this Green Paper was the proposition that for South Africa, the cost of a lack of investment in managing international migration was far higher than the cost of building the necessary capacity. The capacity to manage international migration depended to a large degree on the capacity of the state to lead and to coordinate across the local, provincial and national government.

In conclusion the DHA stated that the Green Paper argued that South Africans needed to adopt a paradigm that saw international migration as enabling their own development and that of their country and region. The objective of a Green Paper was to build consensus and receive inputs before drafting the official policy document, a White Paper. Thus, the purpose of the Green Paper on International Migration was not to be definitive but to propose broad principles and raise key issues that need to be addressed by multiple stakeholders in each policy area. Therefore, the Green Paper and public responses to it will be used as a basis for drafting the White Paper on International Migration. 

Discussion
The Chairperson commented that national security had to be taken seriously. There was a need to improve the security of the country. South Africa was willing to open its doors to welcome foreign nationals but doors could not be opened widely to allow those who could come into the country for the purpose of injuring others. Management and control of the flow of mixed migration was a prerequisite. How many applicants were there who applied for asylum but never came back to see the result of their application? What were the possibilities of using law enforcement officers to make it difficult for illegal asylum-seekers to penetrate South African communities or to roam the streets? He was of the view that making the free movement of illegal foreigners difficult could address the problem of illegality. Illegal foreigners were disappearing and running spaza shops or working on farms and could not be traced by immigration officials. This was a problem as they could not be found. He wanted clarity on whether foreign nationals – more particularly asylum-seekers – were turning to DHA offices to regularise their stay.

Ms T Kenye (ANC) supported alternative consultation platforms which included dialogues with traditional leaders and sought clarity on whether the Committee would be invited in the upcoming conference. She asked if dialogues were extended to include local and provincial government. Referring to the NDP, she asked Mr Apleni to elaborate more on what the new policy sought to achieve. Referring to higher number of unsuccessful applications, she sought clarity on why applicants from safe countries were granted asylum-seeker (or section 22) permits. She asked if the Green Paper was harmonised with the Border Management Authority Bill, and on what the strategies were to integrate genuine refugees.

Mr M Hoosen (DA) welcomed the Green Paper due to its introduction of the needed changes in the international migration policy. There were, at global level, economic and political changes and South Africa had to align itself to those changes. He expressed his concern about the radical move to ensure national security, noting that the move would compromise the right to freedom of movement. However, he applauded the fact that the DHA was committed to promoting free movement of the people of the SADC. He noted that the solution to new challenges arising from changes in the global economic setting was a piece of legislation. When the refugee policy was adopted 17 years ago, no one knew that there would be the existing migration challenges. Likewise, no one could tell where the world would be in 17 years to come. Much had changed and South Africa was incapable of coping with those changes in light of the existing policy. It was unable to deal with challenges arising out of international migration. It had been reported that 15 million foreigners were coming to South Africa through its borders and there was ample evidence that a higher number of people were coming in the country illegally. Truly, the Green Paper was pointing in the right direction.

Mr Hoosen said that he had an impression that there was a shift in the granting of permanent residence permits and DHA had adopted a delaying tactic. Should there be the change envisaged by the Green Paper coming into force, what would happen to all those applications already in the system? He heard Mr Apleni making a comment that the granting of permanent residence permits increased the population. He wanted to make it clear that he disagreed with that comment because permanent residents were a small fraction. He appealed to Members not to support a policy that made it difficult for people to exist in South Africa. He argued that refugees or migrants were making a contribution to South Africa and he was not satisfied to hear that the refugee system could not assist refugees and asylum-seekers effectively. He was saddened by the government’s xenophobic approach towards welcoming asylum-seekers. He was raising xenophobic attitudes because Parliament was the right platform to raise the matter.

Ms D Raphuti (ANC) asked if the Committee would be invited to attend the March conference and  whether people who were granted permanent residence permits were leaving South Africa to settle in other countries. She commented that some leaders in government were making irresponsible comments that could incite xenophobic violence. Such conduct was reckless. 

Mr A Figlan (DA) remarked that there were 800 immigration inspectors in the whole country and this number was inadequate to deal with the problem of illegal foreigners. He sought clarity on measures taken to address the porous border as well illegal migration; whether all spheres of government – in particular provincial and local governments – were invited to the public hearing; and for progress on the Border Management Agency Bill Bill. He remarked that if no consensus had been reached yet between the DHA and Treasury on the Bill, then DHA would be wasting the Committee’s time.

Ms B Dambuza (ANC) remarked that the Green Paper talked about realities. She came from a rural area where they were experiencing this immigration especially Basotho migration. In her rural town, one could see taxis transporting Basotho to and from the Qacha’s Nek Border Post. Basotho were coming to shop in her town and could go to Durban to shop there. The Basotho shopping had become a part of their daily life. She was of the view that Basotho might have been crossing illegally. There was the kind of traditional relations between Basotho and South Africans to the extent that chiefs were giving land to Basotho chiefs. Chiefs were giving permission to Basotho to do certain activities in the rural areas. Basotho did not however form part of the South African voter constituency. Her concern was about the tendency of companies to recruit foreign nationals. She was also concerned about the parliamentary public participation process not reaching the wider community. She requested that DHA brief the Committee on the summary of responses to the call to comment on the Green Paper and how DHA had responded to those comments.

Mr D Gumede (ANC) was happy to see people attending this briefing in numbers. That was an illustration of the interest they had in international migration matters. He said that the comments made by Johannesburg Mayor Herman Mashaba were irresponsible and could have incited widespread xenophobic violence. Following the Mayor’s statement there were certain incidents in various areas of Gauteng. He had the power to use the tool of law in order to deal with illegal foreigners, but this power was not used. Imagine what could happen if there were more officials making similar xenophobic statements. The country could have been in chaos. South Africa needed development and growth in economy and this could not be achieved without the contribution of foreigners. However, there was a need to reduce crime. There was a need to alleviate illegal international migration.

He welcomed the DHA’s approach to invite the public to participate including traditional leaders. Public consultation should leave no one out. All should give inputs. He was pleased to see that the Green Paper talked to the SADC Protocol and to AU 2063. People should refrain from raising arguments on basis of emotions but use sound legal and logical arguments. Any country in the world had to look at its revenue and what would be the financial implications in welcoming refugees and migrants. On this note, there should be innovative ways of raising funds to deal with problems arising from international migration. In the fight against illegal foreigners, police officers should be included. They should assist in the management and control of migrants and refugees. He expressed his concern about proposed centres to be built close to borders. These centres might be a hub of corruption if not well managed thus risking national security. They should be subject to an audit of their performance. Much still needed to be done to make South Africa respond to international migration swiftly, effectively and sufficiently.

The Chairperson remarked that if the Executive was naïve in what they were doing, society would dictate to them what to do. Members should also know that applicants for permanent residence permits were not in danger; they were not seeking protection; rather, they were seeking to upgrade or improve their legal position and status in society. On the question of the conference, he said that it would clash with the Committee’s Germany visit. On the progress on the Border Management Agency Bill (BMA) Bill, he reminded Members that it was the Parliament that had the power to make laws. If no consensus was reached between the DHA and Treasury, the Committee would exercise its jurisdiction and finalise the BMA Bill as it deemed best. The Bill could be amended at later stage if the executive was unhappy with it. On top of this, the Bill had to undergo other processes to become an Act. The Committee was actually done with the Bill. The delay in the BMA Bill had frustrated the Committee’ activities and the Committee should finalise it.

Mr Apleni welcomed the Committee’s inputs and suggestions in addition to expressing their happiness with the direction that the Green Paper was taking. He said that it would be better if the DHA came again to engage with the Committee to address their concerns. In the meantime, the questions raised would be responded to in writing.

Mr Jackie McKay, Deputy Director General: Immigration Services, clarified some points. He noted that all applicants for asylum were granted an asylum-seeker permit because this was in line with asylum law. Everyone who claimed to be a refugee ought to be heard. He remarked that he did not support Mr Hoosen’s view that foreigners were contributing to economy and thus they should be welcomed. His view overlooked the fact that not all foreigners were contributors to economy. There were those who were undesirable who were prohibited persons that ought to be detected and denied entry. These were the same issues that led to the introduction of the BMA Bill.

The Chairperson agreed. He remarked that the new policy on international migration ought to provide the right path to controlling and managing migrants and refugees. He questioned Mr Hoosen's view, by asking how could it be concluded that illegal migrants and asylum-seekers working on farms and in factories were contributing to economy when South Africa was challenged by unemployment.

Summary of submissions on Refugees Amendment Bill
Mr Adam Salmon, the Committee’s Content Advisor, said that his brief presented a summary of the 19 submissions of over 200 pages made by various organisations to the 2016 Refugee Amendment Bill and he had arranged these comments according to their reference to clauses in the Bill or to the sections in the principal Refugees Act of 1998. Submissions had been received from the Agency for Refugee, Education, Skills Training and Advocacy (ARESTA), Amnesty International, Centre for Child Law (CCL), Centre for Constitutional Law ((CFCR), Commission for Gender Equality (CGE), Consortium for Refugees and Migrants in South Africa (CORMSA), Goodway & Buck Attorneys (GBA), International Network of Congolese Lawyers (INCL), Joburg Child Welfare (JCW), Jesuit Refugee Service South Africa (JRS), Lawyers for Human Rights (LHR), Legal Resources Centre (LRC), Refugee Law (RL), Mr Kande (Lecturer/Writer), Refugee Legal and Advocacy Centre (RLAC), Rwandan Refugee Community Association (RRCA), Scalabrini Centre of Cape Town, Scalabrini Institute for Human Mobility in Africa (SIHMA) and Stop the Attack on Refugee Rights Campaign (STAR).

The Chairperson stated that given that there was no time left for Mr Salmon to go through his brief, Members should go home with a hard copy of the brief for them to engage with it at home. It was a summary of oral submissions made by civil society. 

The meeting was adjourned.