White Paper on Migration: border refugee processing facilities: implementation by Home Affairs

Meeting report

The Chairperson welcomed the delegation from the Department and read out the apologies.

Briefing by Department of Home Affairs (DHA)
Mr Jackson McKay, Acting General Director-General, DHA, explained that the purpose of the presentation was to provide the Committee with an update on the progress made by the Department towards the implementation of the new White Paper on International Migration (WPIM).

Mr McKay said that, in the 2016/17 financial year, the DHA produced the WPIM which was approved by the Cabinet on 29 March 2017 and gazetted on 28 July 2017 for public notice. The DHA briefed the Committee on the key elements of the WPIM on 13 June 2017.

The WPIM recommends policy and strategic interventions in the following policy areas:

• Management of admissions and departures
• Management of residency and naturalisation
• Management of international migrants with skills and capital
• Management of ties with South African expatriates
• Management of international migration in the African context
• Management of asylum seekers and refugees
• Management of the integration process for international migrants
• Management of enforcement

The WPIM provides a new policy framework that will guide the comprehensive review of immigration and related legislation. Those elements of the WPIM that require only administrative action are already being implemented. However, those elements of the WPIM that require major changes will not be implemented immediately pending the finalisation of a new legislation.

Mr McKay noted that the strategic objective of the medium term targets for 2017-2020 was one fold: movement of persons in and out of the country managed according to a risk based approach. Its output included (i) immigration and refugee policy developed and legislation reviewed; (ii) BMA established and operationalised and (iii) establishment of asylum processing centres closer to the country’s borders.

Mr McKay briefed the Committee on progress report per policy and strategic intervention. In terms of the management of admissions and departures, the policy objective was to strengthen a strategic, modern, integrated and risk-based approach in managing a secure and efficient movement of people, goods and conveyances. In terms of management of international migrants with skills and capital, the policy objective was to increase South Africa’s international competitiveness for critical skills and investment. In terms of the management of ties with South Africa expatriates, the policy objective was to proactively manage and harness emigration for development purposes. In terms of management of international migration within the African context, the policy objective was to ease cross-border movement for African citizens and to provide a legal permitting route for SADC economic migrants. In terms of management of asylum-seekers and refugees, the policy objective was to provide protection and basic services to asylum-seekers and refugees in a humane and secure manner. In terms of management of the integration process for international migrants, the policy objective was to establish a secure, strategic and integrated approach for the integration of international migrants into communities. In terms of management of enforcement, the policy objective was to reduce irregular migrants and improve compliance with immigration and related legislation and by-laws. Policy interventions and progress status with respect to the said policy objectives were provided

Mr McKay noted key on-going interventions, which included establishment of the Border Management Authority (BMA), a One-Stop Border Post (OSBP), and asylum processing centre closer to the borderline.

The Department of Home Affairs was responsible for overseeing the submission of the draft OSBP Policy to Cabinet for approval. Before the draft Policy is submitted to Cabinet, a Socio-Economic Impact Assessment (SEIAS) needs to be undertaken.

The following aspects of the WPIM require further development:

• Criteria and preconditions for the establishment of Ports of entry;
• Criteria and procedure for providing protection and identification services to vulnerable groups (elderly, children, disabled and pregnant women)
• Conceptualisation of a Points-Based System for skilled international migrants;
• Conceptualisation of a risk-based deportation policy and strategy;
• Conceptualisation of a ‘whole of government approach’ for managing migration;
• Review of citizenship and marriage policies regarding the grounds for granting citizenship to foreign nationals;
• Establishment of an interdepartmental institutional mechanism for managing emigration; and
• Establishment of an intergovernmental institutional mechanism for managing integration.

It is envisaged that a consolidated report on the above policy interventions will be submitted to the Minister for approval by 31 March 2018.

Mr McKay said that while the DHA had made serious advances in developing a new vision for a future–fit and responsive international migration framework, divergent and conflicting views on the management of international migration persisted. In order to facilitate a national conversation on the new policy the DHA was undertaking dialogues with thought-leaders across various sectors and disciplines.

Discussion

The Chairperson said that there was a lot still to be done. He hoped that the DHA had the human resources to implement these policy interventions. He asked the DHA to state clearly how the establishment of the BMA will happen. What would happen if the BMA Bill was signed into law? He expressed concern that the BMA would not be implemented because of its multi-faceted character and because of a lack of funding.

Ms N Dambuza (ANC) welcomed the presentation which clearly outlined the policy interventions. She, however, felt that there were a quite number of issues in immigration and refugee policy that needed amendments. She was concerned that the following year the Committee would not have time to consider the proposed amendments to existing laws. She noted that there were challenges faced by the DHA in the provision of services that led to various complaints from foreigners. She felt that immigration and refugee laws needed to be amended as soon as possible in order to address these issues. There were many complaints about the conclusion of marriages in respect of asylum-seekers. She asked why the DHA was not processing the asylum-seekers permits in a correct way and why they were not given opportunity to marry. Would the Department adhere to the African Union’s Agenda 2063? What could be done to harmonise the Southern African migration laws with the said vision so as to ensure the achievement of economic development thereby avoiding the economic growth predicament. What aspects were needed to be prioritised for the implementation of the White Paper?

Mr M Hoosen (DA) commented that there were a number of positive policy interventions in the White Paper; however it also contained scary interventions. Most problematic was the whole notion of how the DHA measured foreigners who come into South Africa. What criteria were taken into account? What was apparent was that permission of a foreigner into the country was measured on the question of whether he or she would be contributing to the economy. The immigration policy was economic oriented. He gave an example of Mauritius where that country set out having a minimum amount of money as a requirement for granting permanent residence status. He then asked whether DHA conducted any study in relation to the granting permanent residence status. Referring to the long term residence permit that would be introduced, he asked how the existing applications would be dealt with. He raised his concern about backlogs in the consideration and finalisation of the permanent resident permit (PRP) applications as well as in adjudicating asylum applications.

Mr Hoosen asked how applications for asylum would be dealt with in the centres if the DHA could not manage the existing demand of applications. Could the DHA affirm that it was capable of providing accommodation to asylum-seekers? What would happen in the case of mass influx of refugees? The Green and White Papers were silent on how these issues would be dealt with. What kind of information was the Department taking into consideration in the management of international migration? It appeared that one of the factors was whether an individual could invest in the country. What could be that investment? Why was the Department asking foreign nationals to seek permission from the Minister if they want to marry a South African? What was the motivation of requiring the consent from the Minister for a Marriage Clearance Certification? He was happy to see the cost projection for the establishment of the processing asylum centres, and asked why there was no cost projection in terms of establishing the BMA. On the dialogue and engagements, he asked if there was any engagement with civil societies and refugees and asylum-seekers.

Ms H Hlope (EFF) said that there was contradiction in the asylum law with respect to the right to work and study. How would the basic needs of asylum-seekers be catered for in the processing centres if they had no right to work and study? Would they be allowed to study and work in the processing centres? On dealing with documentation of refugees and migrants, she raised concern about the long queues she noticed at the Department offices in eThekwini and Bloemfontein. It was apparent that the DHA was challenged when it came to managing the influx of refugees and migrants and asked whether the DHA would be able to implement the new policy interventions. She noted in the White Paper, the DHA referred to something called a safe first country principle and asked how the principle would apply and how it would deal with Africans given that the borderline was colonial. Many African came in South Africa in search of green pastures. It was true that many of them were in the country to look for jobs. This was a fact that could not be disputed. The White Paper however was silent on how this problem should progressively be addressed. If one exited the parliamentary precinct, one would immediately come across foreigners running their business. Foreigners were in the country in numbers. A policy intervention was needed in order to document them and to allow them to do their business in a formal way. There was a need to attract their critical skills. She stressed that something ought to be done on the side of the DHA. Foreigners needed South Africa and South Africa needed them. She recalled that during the liberation struggle, South Africans needed them and they offered shelter to South Africans. Instead of facilitating their movement and stay, the DHA had restricted such facilitation on the basis of increasing security concerns and measures in the asylum and immigration policy. With these security concerns in place, how will the DHA be able to achieve the good things that were articulated in the White Paper? She therefore agreed with the Chairperson that a lot had to be done for policy interventions to be operational.

Ms D Raphuti (ANC) welcomed the presentation on the White Paper. She noted that the permanent residence permit would be replaced by a long term residence visa and asked whether such approach would apply to holders of the PRP or those who have applied pending the finalisation of their applications. Referring to marriages between South Africans and a non-citizen, she asked why DHA was not registering children born from this marriage. She highlighted that there was a TV programme that showcased these challenges.

Ms Raphuti referred to critical skills and said she was very sceptical about doctors because many of them were bogus, who came into the country just to do gruesome atrocities. Why did the Department of Health not detect that these people who called themselves doctors were bogus? She posed the following question: how will the DHA be able to identify the rotten potatoes from good potatoes, if it said that they were high risk migrants who should not be allowed in the country? She welcomed an approach of cross-border traders visa and SMME visa for immediate neighbouring countries. She finally said that she wanted to see the BMA running. The BMA Bill was stuck at the NCOP level and asked what the problem was, hindering the Bill to progress to another level.

Ms N Mnisi (ANC) welcomed the presentation and commented that a lot of work was done under the Green and White Papers to ensure gaps were closed. However gaps were still apparent. She noted that a risk-based deportation strategy would prioritise deportation of high risk over low risk migrants and asked the DHA who it considered as a low and high risk migrant and what factors would be taken into account to classify migrants in either one of these two categories. On the establishment of immigration repatriation centres as well as processing centres, she said there was a need to engage with neighbouring countries and asked what agreements with neighbouring countries were concluded. She noted that there were international conventions that impacted on the implementation of policy interventions and asked whether those that were a hindrance could be reviewed. On the question of consulting stakeholders, she asked the DHA to clarify changes that were made when the Green Paper was turned into a White Paper.

Mr A Figlan (DA) said that South Africa had a good policy on international migration but the problem was its implementation. He asked how the BMA law would be operationalised. Would it be possible to implement it if each and every port of entry there was a shortage of human resources? The DHA was proposing policy interventions but the concern was: how it will be operationalised. What could be done to improve the implementation of the policy? Was there any strategy to improve on operations?

The Chairperson said that the question of lack of human resources should not be considered in isolation. There were other factors that affected the operation of the DHA. The successfulness of the work of the DHA was dependent on the work done by other departments. He asked how the interdepartmental relationship was. How did the DHA collaborate with other departments to ensure its immigration policy related targets were achieved? He noted that the new international migration policy sought to separate asylum-seekers from economic migrants. However, the problem was that all these people were abusing the asylum system and asked how the policy objective of not abusing asylum system would, in practice, be achieved.

On the issue of AU’s Vision 2063 and the question of free movement, Mr McKay responded that, for the past years, they negotiated the tax free and the free movement protocol. There were five meetings in this regard in which migration experts converged to discuss the issue of migration on the continent. African countries should work together to be prosperous through the establishment of a single economic system, applicable on the continent. South Africa agreed with and fully supported the Vision 2063 because it also believed that a single economy would make Africa prosper. The DHA was also arguing that allowing a free movement on the continent was a cornerstone of achieving that prosperity. However, there was a need to look at security issues that were posed by free movement of people on the continent. It should be noted that there was economic disparity among African countries. Because of the question of economic disparity, people tended to migrate to rich countries or countries with promising economic development. Such tendency would lead to people leaving their country to go to settle in another country. For that reason, there were certain pre-conditions that ought to be established in order to allow a free movement. Of concern was that some countries did not have population registers and DHA could not know where some people were coming from if allowed to enter the country freely. The other prerequisite was that everyone should have a travel document if the free movement could be allowed. The harmonisation of immigration systems with the 2063 Vision could not be achieved without identifying low and high risk migrants. Other African countries had started to implement a free movement principle but South Africa had put forward those proposals in order to implement free movement protocol. This would be discussed in the upcoming meeting. The prerequisite for implementation of the protocol in question included the consideration of the question of burden sharing on the one hand and the need to deal with guns in order to decrease the problem of transnational crimes and asylum-seeking. South Africa subscribed to the free movement protocol, provided that certain pre-conditions were met.

On the question of fast-tracking complaints of foreign nationals, Mr McKay noted that these complaints could be resolved through policy interventions. These complaints were difficult to address as they were policy related. Nothing could be done unless the policy was amended. However, there were those complaints of an administrative nature. These complaints were addressed.

On the view of making admission of foreigners in the country difficult, Mr McKay noted that he believed that the proposed international migration policy was a ground-breaking because it would allow people to come to South Africa. There were various visas introduced and there was a consideration of protecting South Africa against those foreign nationals who might put the South Africa at risk. Obviously, those who were financially stable or independent could apply not only visa but also PRP. Despite the showing of financial stability, there was a need to check where the money came from or the type of business they were engaged in because South Africa could not allow drug dealers to come to South Africa. There was an amount set in order to issue retirement visas and all these were done in order to boost South African economy.

On the marriage between a citizen and a non-citizen, he noted that there was a concern that there were a huge number of applicants of the PRP on the basis of spouse or who qualified for the PRP on the basis of spouse or marriage.

On the question of backlog in the issuance of the PRP, Mr McKay said that a huge number of applicants were applying for the PRP on basis of spouses or relatives and there was a concern about marriages of convenience. In order to deal with this problem, all marriages had to be investigated first in order to verify the validity of the marriage or to determine whether a marriage did exist merely on paper. He agreed that there was a backlog but this was because a high number of bogus applications could be found or detected.

On the establishment of processing centres, he noted that this was a contentious an issue. He agreed that Mr Hoosen’s concern was valid but it was the duty of the DHA to find mechanism to mitigate the problems raised by Mr Hoosen. He reported that many asylum-seekers indicated during interviews that they were in South Africa to look for a job. If they were in South Africa to seek a job, they were economic migrants. Many asylum-seekers and economic migrants were coming from the SADC countries and therefore a SADC permit would be created. This would address the big chunk of asylum-seekers. In processing centres, asylum-seekers would not be kept for too long. Their applications would be considered within a reasonable time. Of importance was their separation from economic migrants. Because of disaggregation, asylum application would be dealt quicker. Only those who qualify to be refugees would be allowed to move freely in the country. In the case of mass influx, there were other laws that could kick in such as disaster legislation. It was not the refugee regime that dealt with mass influx of refugees.

Mr McKay responded that there was a study on international migration and how migration could be benefited from to develop the economy. The study included those South Africans who were in the diaspora. People who were outside the country were bringing a lot of money to their countries. Accordingly, it was important to get people in the diaspora to invest in the country. A document would be established to illustrate how these investments could be managed. There was a need to know why people were compelled to leave South Africa or their home countries.

On the question of managing refugees, Mr MCKay responded that there were refugee reception centres based in Musina, Durban and Pretoria. However, applicants for asylum could pass to these offices and go to other provinces. Applicants for asylum preferred the Durban office where they could easily apply without going through biometrics processes. There was a huge congestion in Durban. As far as he knew, there was no refugee reception office in Bloemfontein. He asked Ms Hlope to give him the details regarding the office in Bloemfontein as illegal activities might be involved.

On the question of the first safe country principle, Mr McKay responded that there were discussions on the implementation of the principle; in particular, how the challenges related to its implementation could be addressed.

On the introduction of security measures, Mr McKay responded that the immigration law was created to protect citizens and to ensure that citizens were first catered for before the rest. Immigration law created certain rules and principles that apply to non-citizens. According to immigration rules and principles, the state should first see whether citizens had access to social and economic services such as education and hospitals prior to extending such services to non-citizens.

On the question of whether the law would work retrospectively with regard to holders or applicants of the PRP, Mr McKay responded that the new law would not work retrospectively. However, those refugees who were in the process of application for PRP were applying for a long term residence permit. They should also understand that naturalisation should not be based on the time stayed in South Africa.

On the question of inter-departmental cooperation or collaboration, he noted that the DHA could not deal with all issues related to migration on its own. If a person was given a visa on the basis of critical skills to practice as a doctor in South Africa, such visa could be issued provided the Department of Health had done its work. For example, the DHA could consider that people were eligible to come to South Africa; but the DHA could hear people complaining that hospital beds were full of foreigners. He asked how  this issue would be of concern to the DHA if those foreign patients were legally admitted in the country. This implied that other departments had to regulate foreign nationals in their sector and to ensure coherence in the migration management policy. A question was asked in passing like: who managed the pastors and priests? A question such as this would be difficult to respond to. There might be someone who was responsible to manage pastors and priests in South Africa. And if there was no one, this implied that there was a lacuna in the law and a policy intervention was needed. The managing of foreigners required cooperation between departments.

On the question of deportation of high risk migrants, Mr McKay responded that the DHA could only engage in the deportation of (illegal) migrants if it had spoken to the foreign country concerned.

On the changes effected from the Green Paper to the White Paper, Mr McKay noted that there were comments that were provided by human rights organisations. These organisations, among other things, disputed that the centre should be referred to as detention centre; and was finally referred to as processing centres for asylum. They also considered asylum-seekers who were coming from war-torn countries.

On the difference between long terms residence permit and permanent residence permit, Mr McKay responded that the main concern was that it could not be automatic to acquire citizenship. There should be a procedure to acquire citizenship. Naturalisation could not be made on the basis of number of years stayed in the country. People should be allowed to apply for a long-term stay instead of granting them one-term permanent residents.

In closure, the Chairperson remarked that statistics should be provided for those individuals who graduated to become citizens on the basis of love (i.e. spouse) or the number of years stayed in the country. There was a lot of work that had to be done to ensure that the White Paper was implementable. It was a prerequisite to know everyone who was in the country in order to identify and trace those who were criminals or committing crimes or high risk migrants.

The meeting was adjourned.