Immigration Amendment Bill: briefing overview

Home Affairs

01 August 2004
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HOME AFFAIRS PORTFOLIO COMMITTEE
2 August 2004
IMMIGRATION AMENDMENT BILL: BRIEFING OVERVIEW


Chairperson: Mr H Chauke (ANC)

Relevant documents
Immigration Act 13 of 2002
Immigration Bill [B11-2004]
Introductory Remarks by Minister of Home Affairs
State of the Nation Speech by President Thabo Mbeki

SUMMARY
Following the Minister of Home Affairs' introductory remarks on the reasons for the amendment Bill, the Director-General summarised the major amendments proposed by the Bill.

He noted that the Preamble seeks to recognise the need to attract scarce skills, to transfer them to South African citizens, the recognition of South Africa's role in the development of SADC and also excludes the Department of Home Affairs as the lead government department responsible for border patrol. The Bill makes the regulation-making process less onerous and cumbersome by removing the long-winded public participation process required by the current Act. The visa-exemption process was now removed from the cumbersome regulation-making process and was now made a matter decided via bilateral negotiations between States. The Bill amends the composition, powers and representivity of the Immigration Advisory Board, the review process in Sections 3 and 8 of the Act were now being brought in line with the Promotion of Administrative Justice Act. It was uncertain whether Section 3 of the Act in fact granted powers to the Director-General or the Minister to delegate powers, and the Bill now makes it clear that the Minister can delegate powers. The Bill also proposed the deletion of the training fund, chartered-accountant certification, Section 2, the inter-departmental co-operation committee, the diplomatic permit, immigration courts, certain definitions and the register of foreigners by accommodation businesses from the current Act. However, the State would again have to record the entrance and exit of all persons that depart from and enter the Republic.

During the discussion on the briefing Members sought clarity on the reasons for the removal of immigration courts and the effect this would have. Clarity was also sought on the new provisions that deal exclusively with visas and the Department was asked to explain whether the Department of Safety and Security or the Department of Correctional Services would be responsible for the detention of illegal foreigners.

MINUTES
Introductory remarks by the Minister of Home Affairs
Ms N Mapisa-Nqakula, Minister of Home Affairs, presented introductory remarks (document attached) on the reasons for the amendments proposed by the Bill.

Overview Briefing by Department
Mr B Gilder, Director-General of the Department, stated that the Department has been waiting with bated breath for this moment and was happy that it has arrived at last. He outlined the process that led to the preparation of the Bill. After the statement made by President Mbeki in his State of the Nation Address, the Minister had asked the Director-General to head up a task-team which would attend to the task given by the President. The Task Team met for a two day workshop in May. It consisted of legal practitioners from the Department as well as representatives from the State Law Advisors (SLA). The team identified areas in the Act that would need to be attended to in order to develop regulations as required, and a smaller drafting team then worked on the draft amendments.

A conceptual document arising from that workshop was circulated to all the government departments that had an interest in immigration legislation, and it was also discussed by the Immigration Advisory Board whose comments were taken on board by the drafting team and were incorporated into the amendments as far as possible. The first draft of the Amendment Bill was then provided to the Committee of Ministers, and the Department also attempted to incorporate the comments made by them into the Bill. It was then presented through the Cabinet process to the Governance and Administration Committee in mid June and finally to Cabinet on 23 June 2004. Cabinet accepted it with one or two small provisos. The Bill was forwarded to the SLA for certification and submitted to Parliament on 24 June 2004.

The Director-General assured Members that the Department would be available to answer any questions throughout the Committee's deliberations on the Bill. He then summarised the proposed amendments, and also explained the background to those amendments:

Preamble
In the main the proposed amendments to the Preamble seek to remove superfluous provisions, as well as some aspects of the Preamble which were remnants of the original Immigration Bill but which were rejected by Parliament. In particular the Preamble sought to add emphases in terms of the spirit behind the Bill by, firstly, recognising the need to attract scarce skills and the transference of such skills from foreigners to our own citizens. Secondly, to emphasise the country's role in the development and growth of the SADC region as well as the continent. The reason for this was that concern has been raised on a number of occasions with the Department directly in Cabinet and elsewhere that South Africa's immigration dispensation appeared not to recognise the special relationship is shared with its neighbours and the continent of Africa.

The Preamble also sought to exclude the role of the Department as the lead Department in controlling the borders of the Republic. The reason for this was that the Department was not sufficiently consulted in the process that led to the current Act. There are a number of departments such as the South African Revenue Services (SARS), the South African Police Services (SAPS)as well as others involved in border control, and it was never agreed amongst those that the Department would lead this drive. Secondly the Department was only responsible by law and by fact for immigration control at ports of entry, and did therefore not have a responsibility for patrolling the border line itself. The Act as it currently stood thus fudged this issue somewhat, and the amendment proposed to the Preamble sought to clarify this.

An amendment was also proposed which sought to confine the role of the Department to combating xenophobia through the government sector itself and within government. While it was widely acknowledged that xenophobia must be combated at all levels of society, and while the Department would be keen to play a role, the concern was expressed that if this were included in legislation the Department would then be made responsible for combating xenophobia in society as a whole. This would create difficulties and possibly even lead to legal situations.

Regulation-making process
The Director-General stated that this was the second large area that was addressed by the Bill. The aim was to make this process less cumbersome and onerous, and to bring it in line with regulation-making processes that apply to other government legislation. The amendments required the Minister to make regulations in consultation with the Immigration Advisory Board (IAB).

The amendments also proposed the removal of the obligation for the fairly complex and long-winded process of public consultation, as well as the requirement for the Minister to respond in writing to each input made by the public through the process of footnotes. He emphasised that this did not signify the Department's intent to do away with public consultation, with the IAB or Parliament itself in the making of regulations. It merely sought to make the process much simpler and straight-forward and to ensure compliance with the regulation-making process employed in other legislation.

Immigration Advisory Board
With regard to the composition of the Board, the amendments propose the inclusion of additional government departments on the IAB especially the Department of Justice and Constitutional Development and the National Intelligence Co-ordinating Committee. The reason for this was because it was felt in the representations that the Department received that these two departments had a significant contribution to make to the deliberations that the IAB would be responsible for in providing advice to the Minister.

Secondly the amendments propose that the current situation in the Act which simply provides that the Minister would designate the Chairperson of the IAB was not clear whether it meant designate from amongst the members, or whether it meant appoint and designate a chairperson from an outside source. This was thus clarified in the amendment by stating that the Minister would designate both a chairperson and a deputy chairperson from the appointed members of the board.

Composition of the IAB
The Bill also proposed changes to the composition of the IAB with regard to the non-governmental representation, and now requires the Minister to appoint a number of other persons to the IAB. The requirement of public nominations for civil society in the current Act was now being removed by the Bill.

It was also proposed that the powers of the Minister to remove a member of the IAB as well as the issue of the operations of the IAB would now be prescribed by regulation. The other amendments propose that the staff that would support the IAB would be officials from the Department designated by the Director-General for that purpose.

Powers and functions of the IAB
The Department had to deal with a rather extensive range of concerns in this area, especially as raised by the Cabinet process. One of the primary concerns was that, although it was an advisory board which was designated as such, there were several provisions in the principal Act which granted the IAB powers which seemed to extend over and above the call of an exclusively advisory function. The amendment thus clarifies its role as advisory, removes the requirement that the IAB be consulted on a wide range of provisions of the Act before certain decisions could be made, allowed the Minister to refer any matter to the IAB for advice and also emphasised the important role of the IAB to provide for inter-departmental co-ordination on matters of immigration.

Review process
The next major issue which the Bill seeks to address is the alignment of the review processes in the Act with the Promotion of Administrative Justice Act in various provisions in the Bill.

Clause 4
The amendments proposed to Section 3 of the Act made it possible for any decision of the Director-General or the Minister, which was made via a delegation of powers, to be reviewed by both those officials.

Clause 9
The processes in Section 8 of the Act were particularly complicated and difficult to manage from an immigration control point of view, and these were reviewed in compliance with PAJA. It also provided for illegal foreigners who were refused entry into the country at the points of entry or who were apprehended within the Republic, and now requires the Director-General to notify the holder of the permit and to formulate reasons for the cancellation of the permit must allow the person to make representations before the decision is taken to withdraw the permit.

Deletions
The Bill proposes the deletion of the following sections from the Act:

Training fund
This was currently incorporated in Section 2(2) of the Act. It was one of the remnants of the old Immigration Bill which was intended at levelling a percentage of the salaries of work permit holders, which levy was supposed to applied to the training of nationals. The reality was that the legal mandate to levy such fees fell with the Department of Labour under the Skills Development Act and, in effect, this fee was thus not applied since the Act was implemented and it has caused much consternation and it was in fact waves for the entire period that the Act has been in effect.

Chartered accountants certification
This has been removed from a number of permit application processes in the Act. It was another requirement that was not very practical and the Department only planned to retain it in the area that applied to business permits, which would be done via regulation.

Powers of the Department
One of the concerns were expressed that the Act conferred powers on the Department in a very unusual way, and in many instances this created uncertainty for the Department. The proposed amendments sought to follow the precedent set by other pieces of legislation, which was to clearly identify the executive powers granted to the Minister and also granted her the power to delegate some of those powers subject to certain conditions. Powers relating to administrative decisions vested in the Director-General, who was also given the power to delegate those powers.

Section 2: Objectives and functions of immigration control
The Bill proposed the deletion of this entire section from the Act because it served no purpose. Those elements of this section that had substantive impact have been incorporated in the Bill.

Section 6: Inter-departmental co-operation
The Bill proposed the deletion of this section which required the Director-General to convene a "Liaison Committee" which consisted of government departments that were involved in border control. The Director-General stated that he had been trying to convene this committee for the last year without success and the reason is that none of the parties can understand the purpose of this committee because there are existing structures in place that deal with this aspect. An example would be the Border Control Operational Co-ordinating Committee which reported to the Justice, Crime Prevention and Security (JCSP) Director-Generals' Cluster, which in turn reported to the JCPS Cabinet Committee and dealt with the very issues which Section 6 seemed to target.

Section 12: Diplomatic permit
The Bill proposed the removal of this section via Clause 14 because these permits could in fact only be issued by the Department of Foreign Affairs.

Recording of entrance and departure of citizens
Prior to the coming into force of the Act the movement control system recorded the exit and entry of all persons to South Africa. The current Act prohibited such recording for citizens. This has caused much consternation firstly from the security community who used this information in criminal investigation, also from the tourism industry, Statistics South Africa and the South African Reserve Bank. The Bill thus proposed the reversion to the status quo before the Act came into effect, which was to once again record the entrance and exit of all persons that depart from and enter the Republic.

Immigration courts
The Bill proposed the removal of all reference to immigration courts from the Act. The reason for this was that, as a result of analysis and consultation conducted in conjunction with the Department of Justice and Constitutional Development, the feeling was that these courts served no purpose. They were one of the remnants of the old Immigration Bill which at that stage sought to create a semi-privatised immigration service, as well as special immigration courts. The drafters of the Bill were of the opinion that this served no purpose as the existing court structure was adequate to have jurisdiction over any matter that related to this Act without creating special courts to do so. The only reference to the courts in the Act were now to the Magistrates Court for criminally related immigration matters. In the normal course of things any judicial review of administrative actions would in any case be referred to the High Court.

General and technical amendments
Clause 2: Definitions
The Bill seeks to amend some of the definitions, and the key definitions would now be highlighted:

'admission'
This term is now defined rather than phrasing it as an enabling provision, as is currently the case in the Act.

'border'
This definition has now been simplified.

'conveyance'
This definition was now included to refer to all types and means of transport, except where reference was required to a specific type of conveyance.

'customary union'
The proposed definition seeks to align the definition of this term with the Recognition of Customary Marriages Act.

'deportation'
The proposed definition does not refer only to involuntary removal from South Africa, as is currently the case under the Act.

'foreigner'
This definition has now been refined to refer simply to a person who is not a citizen of the Republic.

'illegal foreigner'
This term now refers to all persons who are in contravention of the Act.

'immigration officer'
The current definition in the Act implied the appointment of such officers, whereas their appointment has now been specifically provided for in Clause 34 of the Bill. The Bill also proposed that the functions of such officers would be prescribed by regulation.

'marriage'
This definition was amended to refer to a marriage concluded in terms of the Marriages Act, as well as corresponding legislation in other countries.

'resident'
This now refers to holders of both permanent and temporary residents permits.

'spouse'
This definition has been amended to bring it in line with the Constitutional Court judgment on this matter, and now included permanent heterosexual and homosexual relationships.

'transit visa'
This was a new term introduced by Clause 12 of the Bill, and allowed the Department to control transit through the Republic. This was introduced because South Africa has a particular problem with the abuse of the transit facilities to gain illegal entry into the Republic. The Department was approached by the Airports Company of South Africa (ACSA) as well as the security community to tighten up immigration controls in transit facilities.

Clause 12
This clause proposed the insertion of Section 10A which would deal comprehensively with visas, including the requirements for visas, the power of the Minister to exempt certain foreigners from requiring a visa and the corresponding power to withdraw such an exemption.

In the debate around the regulations which the former Minister sought to publish shortly before the April 2004 elections, concern was expressed in Cabinet in particular that the current Act provided for visa exemptions to be granted to countries through the regulation-making process. It was argued that this was a very cumbersome process. Secondly the process for agreeing which countries would be visa-exempt requires inter-departmental consultation at the highest level, including at Cabinet level. The amendments proposed in the Bill thus sought to provide for that.

Fraudulent documents
The Bill made it an offence to be knowingly in possession of fraudulent documents that were relevant to the Act.

Schedule 3
The Bill removed the current Schedule 3 in the Act which sought to amend the Refugees Act, because it was felt that the Refugees Act should be amended as a separate process and not via the Act. It was the intention of the Department to eventually bring proposed amendments to the Refugees Act.

Register of foreigners
The Bill tightened the requirement for businesses who provide accommodation, and required them to keep registers of foreigners who made use of their establishments. This was important because the current Act was difficult to administer because it required such places to ascertain the identity of their clients and to report to the Department any failure to do so. The problem was that the Department did not understand precisely what this meant in practice. It was thus felt that the best option would be to require those businesses to keep registers.

Illegal foreigners
The Bill now stipulated that illegal foreigners would no longer be issues with a visitors permit while they sorted out their status, but would in fact instead receive authorisation from the Director-General to remain in the country pending the determination of their status.

Concluding remarks
Mr Gilder said that the Department "was not going to dig in its heels" but was instead open to proposed further amendments and would consider them with an open mind, and would be happy to indicate which of those were able to be accommodated in the short-term process and those which would be better addressed via a long-term process. The Department did not seek to meddle too much with the fundamentals put in place by the Act, especially those provisions that related to the permit system.

Discussion
Mr S Swart (ACDP) requested the Director-General provide Members with a written copy of his briefing, as the manner in which he grouped the clusters of amendments together was very useful.

The Director-General replied that this would be provided.

The Chair stated that one of the problems raised with immigration courts when the former version of the Bill was being discussed was the training of magistrates in immigration matters. He asked the Department to indicate how far this process had progressed.

The Director-General replied that the intention originally was to have specialised courts that would deal with immigration matters. While this might still be desirable in consultation with the Department of Justice and other players, it was felt that it would not be the right option to implement this via legislation. It was indeed possible for the Department to negotiate with the Department of Justice to try and ensure that certain presiding officers were indeed trained to specialise in immigration matters without necessarily creating special immigration courts.

The SLA were not very happy with the Department's decision because just as the Task Team sat down, the SLA were about to present the proposed rules for the Immigration Courts, but this was put on hold. In short the feeling was that having specialised immigration courts that were set up via legislation would serve no purpose.

The Chair noted that the Director-General had been trying unsuccessfully for a year to convene the inter-governmental liaison committee. He asked the Director-General to provide further information on the operations involved and problems encountered.

The Director-General responded that this was part of a bigger problem of inter-departmental co-operation, and the responsibilities of the lead department with regard to border control. A structure known as the National Inter-departmental Structure on Border Control was in place and made a number of attempts to ensure proper border control. This was a very complex and difficult issue and has never been satisfactorily resolved. The problem was that the former Immigration Bill sought to give the Department the lead responsibility in relation to border control, including both the border posts and the borderline without consulting or getting consensus from the other government departments. Thus that Bill sought to do via legislation what the government departments had not been able to achieve via consultation. The Department believed that this was a matter that would have to be considered as part of its longer-term policy process.

The borderline issue was a bit of a moot point. A process was currently underway which took place over a number of years which involved the handing over of the responsibility for border patrol by the South African National Defence Force (SANDF) to SAPS. Theoretically the powers given to the Department by the Bill would grant enforcement powers to its immigration officers, and would thus need the authority to detain any illegal immigrants they might intercept while trying to enter the Republic illegally. The Department did not however anticipate having the kinds of resources that SAPS had at its disposal to control the borders, and it would thus be very difficult for the Department to fulfil this theoretical power.

The Border Control Operational Co-ordinating Committee (BCOCC) has representation from all the government departments involved. The Director-General stated that he had tried to convene the liaison committee required by the Act, but the people who attended were the same members of the BCOCC. The feeling is that the proposed representation for the IAB in the Bill and, given that it is also suggested that departmental representation should be at the level of Deputy Director-General, this would also serve as a high-level forum in which to deal with such a complex matter. Steps were thus being taken to address the issue.

Ms S Kalyan (DA) stated that she did not understand the Director-General's statement that the immigration courts served no purpose, because they have not yet come into operation and thus their value had not yet been gauged.

Secondly, Ms Kalyan asked the Department to explain how the failure to set up immigration courts would impact on the person who has applied for a permit or visa and who is awaiting the decision of a High Court, especially in view of the current case backlog in the High Courts.

Adv K Malatji, Chief Director: Legal Services, responded to these two questions by stating that immigration matters arrived in court in two different ways: the first were cases in which the Department decided to prosecute the illegal foreigner in the Magistrate's Court. The second case was where the illegal foreigner took the Department to court perhaps to challenge the Department's decision to deny them a permit, and this legal action would be instituted in the High Court. Section 37 of the Act stipulated that every Magistrate's Court in the Republic will be an immigration court. Yet this section was now being repealed which meant that the status quo remained and there were no longer any immigration courts.

Negotiations were currently underway which sought to train some of the magistrates to specialise in immigration matters in order to expedite proceedings, especially the most urgent cases. This was important because most of the magistrates currently were not familiar with immigration matters. It would thus not be correct to refer to them as immigration courts as only some of the magistrates and only some of the Magistrates Courts would be specialised to deal with immigration matters.

The Director-General added that the critical point here, with regard to his earlier statement that the immigration courts have not really been functioning, was that when the current Act was originally a Bill before Parliament it proposed the establishment of specialised immigration courts. The legislature did not agree with that and stipulated that in terms of the Act every Magistrates Court would be an immigration court, and there was therefore no purpose in establishing dedicated immigration courts. It was for this reason that they were being removed from the Act.

Mr Erasmus, State Law Advisor, replied that the decisions taken by the Department in terms of Section 37(1)(a) and (c) of the Act were administrative decisions. The PAJ Act was constitutionally mandated legislation and Section 1 of that Act specifically defined the word 'court' as being either the High Court or a Magistrate's Court which has been designated either generally or in respect of a specified class of decisions. There was thus already authority to deal with the immigration courts.

Section 37(1)(a) and (c) of the Act, in the view of the SLA, referred to administrative decisions. Section 37(1)(b) dealt with legal proceedings against the Department and Rules 6 and 53 of the High Court adequately dealt with these cases, and there was thus no place for the immigration courts. In fact the rules that were drafted for the immigration courts presented much difficulty because PAJA, Rules 6 and 53 of the High Court rules, Rule 55 of the Magistrates Court rules as well as the Immigration Court rules had to be consulted. In view of the difficulty it posed, the SLA thus agreed with the decision to delete references to immigration courts.

Ms Kalyan asked whether the Department of Health was not also considered as part of the liaison committee.

The Director-General replied that the government departments that the Bill proposes to sit on the IAB were all government departments that currently sat on the IAB, except for the Department of Justice and Constitutional Development and National Intelligence Coordinating Committee (NICOC). The Department has indeed received representation from the Minister of Health who requested that the Department of Health be represented, and the Department has no objection to its inclusion. The one concern however was to not make the IAB too unwieldy or imbalanced with regard to government and non-government representation.

Mr Swart (DA) asked whether the Department of Correctional Services would be included as well.

The Chair stated that this point would be noted for further discussion.

Mr K Morwamoche (ANC) sought clarity on the government department that would be responsible for the detention of the illegal foreigner, and asked whether this fell within the Department of Safety and Security or the Department of Correctional Services.

The Director-General replied that the Act gave the Department powers to perform functions in order to control immigration, which included powers to arrest and detain. The Department does have powers which do appear to overlap with the powers and mandates of other government departments, but this was necessary. The Department of Correctional Services under Commissioner Mti had made it quite clear on a number of occasions that that Department did not want full responsibility to detain illegal foreigners, as that Department was currently pursuing a policy which focused on the corrections aspects of its mandate and would thus not want to cover detention centres. The Department has thus not even thought of suggesting to that Department that it take over this responsibility.

Mr M Sibande (ANC) sought additional clarity on the new clause which dealt with visas.

The Director-General responded that he was not sure whether there was any further clarification he could add but stated that there were only two aspects which the proposed amendments attempted to address. The first was the process through which the Minister would determine which countries would be visa-exempt, in order to remove it from the cumbersome process of regulation-making itself and to ensure proper consultation particularly at the level of Cabinet. The second was simply to tighten up the provision that related to a transit visa, which dealt with a person who came from a country that required a visa to enter South Africa. This was aimed at dealing primarily with the smuggling of people into the Republic, which was especially prominent from Asia. These people would enter Johannesburg International for example on a transit visa, and the syndicates would then smuggle them out of the transit area at the airport and into the country where they would disappear. The Department has been asked by the security community especially to manage the passage of people at these transit facilities in order to prevent this abuse.

Mr Sibande sought clarity on the definition of 'customary marriages' in the Bill.

The Director-General replied that the aim of the proposed definition in the Bill was to align it with the Recognition of Customary Marriages Act, so that the term was not redefined by the Bill.

The meeting was adjourned.

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