Refugees Amendment Bill: NCOP proposed amendments

Home Affairs

21 November 2017
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The Deputy Minister of Home Affairs told the Committee that there were only a few proposed amendments to the Refugees Amendment Bill from the National Council of Provinces (NCOP), and they were of a technical nature. The Ministry and the Department felt that the proposed amendments improved the Bill, and therefore supported it. After the changes had been explained to Members by the Department’s legal representative, Members agreed the essence of the Bill remained the same and for the most part, they had no problem with incorporating them into the Bill. The Committee would schedule a meeting on Thursday 22 November 2017 to finalise the Bill.

The Chairperson allayed concerns of the United Nations High Commissioner for Refugees (UNHCR) over Clause 18(7) about there being an obligation on them to assist asylum seekers. He made it clear that Clause 18(7) did not make it obligatory for the UNHCR to assist asylum seekers. The Clause spoke about the asylum seeker “may” be offered shelter and basic necessities by the UNHCR or any other charitable organisation or person. If the UNHCR did not have the capacity to assist, then it was not bound to do so. There was no obligation on the UNHCR.

The Chairperson observed that he had heard whisperings about the life of the green Identity Document (ID) coming to an end. On a recent visit to Standard Bank, the bank had had a problem with his green ID book which still had the old coat of arms on it. Standard Bank was sending its clients to apply for the smart ID cards. He asked Deputy Minister Chohan to shed light on both issues. Ms Chohan said emphatically that the green ID book was still very much valid and that the DHA had not as yet made public statements of its impending demise. She was also not aware of the Standard Bank issue, but would it take it up with the banks.

Meeting report

The Chairperson said that the day before he had heard that the life of the green Identity Document (ID) was coming to an end. He asked Deputy Minister Chohan to shed light on the matter. In the same vein,  when he had gone to Standard Bank, the bank had had a problem with his green ID book because it still had the old coat of arms on it. The bank was sending its clients to get smart ID cards.

Deputy Minister Chohan stated emphatically that the Department of Home Affairs (DHA) had not issued any notice to the effect that the life span of the green bar-coded ID book had come to an end. She had no idea where such statements had emanated from. The green bar-coded ID book was very much still valid. If it was so decided, the DHA would in the future make announcements about its demise. There would be substantial coverage of the smart ID card when this was announced.

Regarding the Standard Bank issue she said that it was the first time that she had heard about it. The green bar-coded ID book was still sufficient. It was an issue that she would raise with the banks. If the banks were experiencing difficulties, they had not raised it with the DHA. If and when announcements about the demise of the green bar-coded ID book were made, the public would be provided with sufficient time to apply for the smart ID card.

Amendments from NCOP on Refugees Amendment Bill

Deputy Minister Chohan said that there were only a few proposed amendments to the Bill from the National Council of Provinces (NCOP), and that they were of a technical nature. The Ministry and the DHA felt that the proposed amendments improved the Bill, and therefore supported it.

Mr Dean Erasmus Chief Director: Legal Services, DHA, took the Committee through the proposed amendments. He said that he would use the B-version of the Bill to show Members in which clauses the amendments were proposed.

Clause 4
In line 44, where reference was made to 9B(1)(b), the proposed amendment was to remove the (1) as it was an incorrect reference. It would thus now reflect 9B(b).

Clause 15
The proposed amendment was considered to be a consequential one. He noted that in Clause 2 subclause 4(1) (i), cross reference was made to section 21. The NCOP proposed that in Clause 15 an additional paragraph (a) be added.

Clause 17
The proposed amendment was also considered consequential. In line seven, the proposed amendment called for the replacement of “have” with “has”.

Clause 18
The proposed amendments to the Clause were also considered consequential. The proposed amendments in Clause 18(5) in line 38 asked to insert “prior to expiry” after the word “time”. Furthermore, in line 38, to remove the words, “an asylum seeker visa,” and to replace them with “such permit”.  In Clause 18 (6) in line 47, after the word “with,” to insert the words, “or without”.

Clause 21
In line 37, to replace the word, “Officer” with the word “Office”.

Clause 32 – Substitution of phrases
In line 5, before the word “phrase,” to insert the words, “word or”.  In sub-clause 32(b), to remove the word “phrase” and to replace it with “word”. These amendments too were considered consequential.

The Chairperson felt it highly unlikely that the Committee would be concluding the matter of the NCOP proposed amendments to the Bill at the present meeting. Members needed to discuss the proposed amendments with their respective political parties. He said that when the Bill had been passed by the Committee, it had been sent to the NCOP for concurrence. Now the Bill was back with proposed amendments. The question now was what the Committee ought to do.

Ms Yolande van Aswegen, Principal State Law Adviser, proceeded to read out section 75(1)(c) of the constitution. She said that the NCOP had passed the Bill with amendments. The Bill had then been sent back to the Committee. The Committee now had the option to pass the Bill with the proposed amendments or, if the Committee disagreed with the amendments, to reject the proposed amendments and to pass the Bill as it was, prior to it being sent to the NCOP. Alternatively the Committee also had the option of rejecting the Bill in its entirety.

The Chairperson thanked Ms Aswegen for clarifying the matter. The Chairperson asked Members if they wished to pose questions or make comments.

Ms D Raphuti (ANC) said that the proposed amendments were not tedious. They were more changes of a grammatical and technical nature. She felt that the Bill should be passed with the proposed amendments.

Mr M Hoosen (DA) stated that most of the proposed amendments essentially did not change the Bill. He asked for clarity on Clauses 15(a) and 15(b). Was the intention simply just to separate reporting from applications? He asked why it could not be provided for reporting and applications to take place in the same clause.

Ms N Dambuza (ANC) agreed that the proposed amendments were not substantive. She too felt that the Committee could approve the proposed amendments and pass the Bill by the following week. In this way Members still had time to take the Bill, including of the proposed amendments, back to their principals.

Ms T Kenye (ANC) agreed with the sentiments expressed by Members regarding the proposed amendments. She asked whether the insertion of “prior to expiry” in line 38 of Clause 18 would make a difference.

The Chairperson agreed with Ms Kenye on the “prior to expiry” matter. Why was it even being inserted? He felt it to be a moot statement. When a visa expired, then it expired. On Clause 15 he asked what happened when an asylum seeker arrived after five days. Would the Refugee Status Determination Officer not assist the asylum seeker? The Bill said that the Refugee Status Determination Officer must assist. However, what if the refugee was not fulfilling requirements or playing ball as he should?
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Deputy Minister Chohan said that firm discussions had taken place. The requirement was that persons who sought asylum had to report to a port of entry. These persons were given a five day visa. They had to report to any Refugee Reception Office within the five days. It was very achievable. SA still allowed asylum seekers entry into SA, which many countries did not. There had to be compliance with the requirements of the five-day visa.

She explained that the Refugee Reception Office dealt with different nationalities on different days of the week. For example, if the refugee was from West Africa and he came to the Office when Southern African Development Community (SADC) nationals were being helped, then an obstacle could be that there was no interpreter from West Africa present. However, if the West African had arrived at the Office on the last of the five allotted days, the Office would still register him as being received. The refugee would be given a section 22 visa and would be given a return date within a week to come back when West African persons were assisted. The refugee would be given an appointment slip. All that the proposed Clause 15 amendment was requiring was for the refugee to report. Applications for asylum could be made on that day or on another day. She said that Clause 2, sub-clause 4, which dealt with exclusion from refugee status, provided for persons who went beyond the five-day period. Such persons were excluded from making applications. Long discussion had ensued over the matter. It was important for refugees to report to the Refugee Reception Office within five days, and it was not necessary to make an application.

Mr Erasmus responded on Clause 18 -- the “prior to expiry” issue -- and said that the reason for its inclusion was to make it clear that the Director General of the DHA could still withdraw the visa if the expiry date on the visa had not expired.

Ms Raphuti asked what happened when the visa of a person expired. She was giving an example of a doctor whose visa had expired on 30 October 2017.

Mr Mandla Madumisa Acting Chief Director: Asylum Seeker Management, DHA, said that the DHA could issue a section 22 temporary permit to the doctor. The temporary permit was extendable if the application was not finalised. Application could be made within seven days of expiry, and then there was no fine. However, in the present case the visa had expired almost a month ago, so there could be a fine that had to be paid because the doctor had overstayed. Once the fine was paid, then the permit could be extended. 

Mr Hoosen went back to the Clause 15 issue which the Chairperson had raised, and said that it had not been addressed. If a person had not arrived within five days, then the official did not need to assist the person. He felt that the Clause needed to be tidied up.

Mr Madumisa said that where a person failed to report within five days and had a good reason for not doing so, then the matter would be reconsidered.

The Chairperson thanked Deputy Minister Chohan and the DHA for clarifying issues. He suggested that the Committee schedule a meeting for Thursday 23 November at lunch time to finalise the Bill. In the meantime, Members could take the Bill back to their respective parties.

In addition, he said that the United Nations High Commissioner for Refugees (UNHCR) had an issue with certain provisions of the Bill. There was a great deal of crying foul by the UNHCR. Clause 18(7) dealt with assisting asylum seekers after they had been assessed. He made it clear that Clause 18(7) did not make it obligatory for the UNHCR to assist asylum seekers. The Clause spoke about the asylum seeker “may” be offered shelter and basic necessities by the UNHCR or any other charitable organisation or person. He reiterated that the UNHCR should not cry foul. If the UNHCR did not have the capacity to assist, then it was not bound to do so. There was no obligation on the UNHCR.

The meeting was adjourned.
 

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