Immigration Amendment Bill: hearing

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
4 August 2004
IMMIGRATION AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Immigration Amendment Bill [B11-2004]
Association of Immigration Practitioners of South Africa
Business Unity South Africa
Law Society of the Northern Province Submission
PriceWaterhouse Coopers submission

SUMMARY
The Department completed its clause-by-clause briefing on the Bill from clause 31 to clause 47.

The Association of Immigration Practitioners of South Africa submission to the Committee was concerned at the proposed removal of public consultation. They thought South African business would suffer from the proposed tightening of work-permit regulations. The issues of concern raised during the discussion were of a security and constitutional basis. AIPSA stressed the need for a balance between security and economic growth.

Business Unity South Africa was concerned with the watering down of Section 8 and the implications this had to fair immigration. During the discussion BUSA argued that the proposed bill was at the very least profoundly unfair and at worst unconstitutional.

Many alleged shortcomings in the Bill were pointed out by the Law Society of the Northern Province and PriceWaterhouse Coopers. There was a case made for bypassing the amendment of the Act in favour of working on a completely new Act. Then again, as had been proven in practice, many provisions of the present Act were considered to be superior to the new proposals, especially concerning provision for public participation, flexibility in permit classes, the role and functions of the Immigration Advisory Board and a "client-friendly" approach to encourage the acceptance of South Africa as a participant in the "global village". They claimed that the Bill seemed to focus more on matters relating to affluent entrants, neglecting the problems and opportunities associated with many less affluent people. Scrapping of the training levy of 2% on employees remuneration was supported.

MINUTES
Department briefing on the Bill (continued)
Ms Dikiledi Thaghale continued with the clause-by-clause briefing on the Bill:

Clause 31
This clause empowered the Director General to declare a person undesirable. The Department added the category of resident permits.

Clause 32
All requirements for the Director General or Minister to consult with the Board were removed. The requirement for a time frame exceeding six months were also removed.

Clause 34

Clause 34 amends Section 33 of the principal Act by the substitution of subsection (2) with subsections (2a), (2b) and (2c). This clarifies the Director General's power with regards to the immigration inspectorate.

Clause 35
Technical amendments were made to Section 34 of the principal Act on detention and deportation. Subsection (c)-Insertion in Section 11. The rights accorded to a person detained on a ship as provided in clause 35(c) conform with an earlier constitutional court case in this country.

Clause 36

This clause amends section 35 of the principal Act by substituting the word "owner" for "master of ship".

Clause 37:

This clause repeals section 37 of the principal Act.

Clause 39

This clause amends section 40 of the principal Act. It obliges occupiers of premises where lodging or sleeping accommodation is provided to keep registers of all persons who are provided with lodging or sleeping accommodation therein.

Clause 40

Clause 40 requires any person to identify himself or herself as a citizen, permanent resident or foreigner when so required by an immigration officer or a police officer. In practice this has been problematic. The amendment provides guidelines on the operation of this clause so as to avoid unnecessary detentions and discrimination.

The Chairperson indicated that the Department had to elaborate on these procedures and guidelines. There have been xenophobic practices in the past where immigration officers have arrested Mozambicans, who must have a stamp on their arm to identify themselves. On some occasions black South Africans have been arrested. There was the need for the police to be included in this exercise.

Ms Thaghale replied that during a meeting on 3 August with NEDLAC, it had been decided that during such investigations the Immigration Officer would have to assist a foreigner to trace his or her parents in his or her country of origin.

Sections 41, 42, 43 all relate to technicalities.

Clause 45
Clause 45 amends Section 49 of the principal Act. Subsection 49(b) makes the possession of fraudulent documents an offence punishable with up to two years imprisonment. Subsection 49(d) makes it an offence to impersonate an immigration officer, this is punishable with up to four years imprisonment.

Clause 47

This clause amends the principal Act by the substitution for the word "Department" of the word "Director-General" in sections 13(1) and (3), 17(1), 20(2), 22(b)(I)(cc), 25(4), 28, 33(13), 34(3) and (9), 38(4), 46(2) and (3) and 50(1) and (2), wherever it occurs.

Association of Immigration Practitioners of South Africa submission
Mr Khutso Ngobeni (AIPSA Deputy Chairman): explained that as an organisation interested in promoting the rights of foreigners, they were concerned about the Bill's proposed elimination of public participation. Members were referred to Sections 33(1) and (2) of the Republic of South Africa Constitution (1996) and Sections 3 and 4 of the Administrative Justice Act (2000). These gave the public the right to be consulted about an administrative action that may affect them adversely. Substituting this right with the right to consult with individuals from the Immigration Advisory Board was inadequate and would prevent tourists as well as investors from coming into South Africa. He proposed that the Department should:

(a) Develop a database where views from interest parties including interested foreigners, medical institutions, schools, photographic organisations and other relevant parties could be directed.
(b) Ensure that the opinions from the broad spectrum of foreigners were heard.
(c) publish its policies and directives and abandon its practice of keeping decisions secret.
(d) Ensure that there was an Immigration Officer, trained in justice and human rights issues, empowered to deal with illegal immigrants.
(e) remove all references to chartered accountants certificate from the bill. A chartered accountants certificate is often not as cumbersome as other alternatives which expose themselves to theft.

He proposed that Section 155 of the principal Act should be deleted. A definition should also be included in Clause 46.

Mr Robert De Rooy (Western Cape Forum of AIPSA) said that the Bill amendment to the definition of "work" was more understandable. Photographers and other similar categories of workers may sometimes have to work in South Africa without applying for a work permit. It was suggested that under the terms of Section 7 of the Bill, new categories of permits should be established for professionals. The film and photographic industries were expanding and if such considerations were not given to officials from these sectors, then it may have been detrimental to South Africa.

Discussion
Mr S Swart (ACDP) asked whether Section 8 of the Bill was constitutional.

Mr De Rooy replied that the object of the proposals made with regards to Section 8 were to find a fair administrative balance. They would like Section 8 to remain but the proposed bill was unfair to foreigners. It was difficult to get the Director-General in the time frame allowed and thus the rights were meaningless.

Ms S Kalyan (DA) asked that since AIPSA was given a grant by the government, whether there were immigration law practioners on the advisory board. She asked about the present status quo of actors as a separate category of work permit issue. She sought clarity regarding fraudulent marriages. Who was responsible for the conversion from temporary status to permanent status and how this happened?

Ms A Van Wyk (ANC) asked why the Immigration Practitioners wanted the powers in the hands of the Director General to be given to the Review Committee. This would be problematic. It seemed that the Practitioners' arguments on illegal immigrants were prejudiced, because it was impossible that immigrants only arrived after hours and on weekends. There were many people who could not afford chartered accountants

Mr C. Kinsman (AIPSA Chairman) said that his organisation represented a broad spectrum of foreigners and therefore their representation was very important. He confirmed that they were given a grant, but that it was not substantial. They have a member on the board but it was unclear whether the member is representing the association or whether they are on the board in a personal advisory capacity to the minister. They sought clarity on their position.

Mr De Rooy said that people who were visa exempt could get an endorsement on their passport. Current provisions under which they arrive were not ideal and it was basically forcing through a particular interpretation. They are not catered for in the current definition of work permits. Currently photographers and models can arrive under a visitors visa, but the new interpretation will close this loop-hole. After this amendment is enacted then they will have to apply for a work permit and await the decision. The other issue is these workers often arrive in teams brought together from throughout the world so the new provisions would be a logistical nightmare.

He continued that the onus with regards to marriage should be on the applicant. Once a three to five year period has elapsed it would be up to the applicant to prove that they were still legitimately married. They would need to provide objective proof of their status and then after this period they should be given the opportunity to apply for permanent residence. Concern must be shown to illiterates without proper judicial access. When a decision by the department has to be taken on review in terms of the current Act the Director General has the decision making powers. When the decision is reviewed it is assessed by the Director-General. In effect he is reviewing his own decision therefore these decisions are very rarely overturned. He suggested that an independent body should assess and review decisions. The provisions of the Immigration Act were the same as the provisions for security, if they wanted to exercise their review rights then they had to agree to be detained. A person who is determined to be an illegal foreigner must be offered the opportunity to escape detention with bail conditions set. If bail is forfeited then the illegal would be deported. Chartered accountants certificates were a more effective way of proving financial competence and should at least be kept as a possible option.

Mr K Morwamoche (ANC) asked what was wrong with the Bill's provisions on public participation. A review should be conducted under the reference of Section 8. If the government wanted to verify the accounts of prospective foreign workers, it could do so by demanding that they obtained a Chartered Accountant certificate.

Mr M Sibande (ANC) was concerned that the government had to conform to all the correct procedures. In the post September 11 world, these procedures had to be followed to try to ensure security. South Africa could not allow a situation where persons could go in and out of the country as they so wish.

Mr De Rooy totally supported public input. It was in everyone's interests that stakeholders could comment on the procedure. However, the processes and time periods involved are cumbersome. There is nothing wrong with the Certificates having to be provided, for the purposes of verifying a person's finances. Some incomplete applications have sometimes been granted and this must actually be stopped. However, the problem here is that a certificate should be prima facie proof that a person's finances are sound. Owing to this and the discrepancies by some industries and offices in interpreting these requirements, the investors sometimes leave the country and go to countries such as Argentina, Australia and others. Security should be balanced, it was an important issue but it should be balanced with the need for investment and economic growth.

Mr Y Wang (ID) wanted to know how many companies were registered by AIPSA.

Ms Ivy Ludwabe (ANC) commented that the removal of public participation would be a big blow to South Africa especially considering their historical legacy of no input.

Ms N Mathibela (ANC) asked whether the immigration officers were empowered.

Mr C Kinsman noted the concern with regards to public participation. On a constitutional basis, advocates must be eliminated from the whole process. Somebody can acquire rights but it must be ensured that this conforms to the Bill.

Mr De Rooy added that the bill empowers people with rights. However these rights were empty, they were not effective provisions. There was the necessity to ensure that immigrants were treated fairly.

Business Unity South Africa submission
Mr V Esselaar (Business Unity South Africa) stated that all administrative acts must satisfy legal requirements. There was a large diverse body, including business, law, refugees, that objected to the elimination of the comprehensive appeals procedure. The proposed Bill provided little opportunity for appeal. The provisions of Section 8 were something to be proud of, they allowed a comprehensive appeals procedure meaning that any mistake could be rectified. Section (3) of the Bill came from the Alien Control Act. The new act may stop a cumbersome process but it stops effective procedure in total. The foreigner must submit representation to the Director General within three days. If he or she does not do so, then they will be automatically deported. The Act does not take into consideration when the Director-General may see the representation. It presumes that if there was no positive response within this same three day period then the person should be deported. This provision was inadequate. The foreigner is removed from the country even if the Director-General had not even seen the representation. BUSA supported the appointment of a human rights representative on to the board. The new act includes many direct transfers from the Aliens Control Act which was a piece of apartheid legislation.

The Bill required hospitals to know whether their patients are illegal foreigners. This will mean that illegal foreigners will not seek help for HIV and TB conditions. Without treatment and advice they may infect many South Africans

Discussion
Mr K Morwamoche, (ANC) expressed concern about the scrapping of the training levy.

A Member inquired about the areas where Business Unity disagreed with NEDLAC.

An ANC Member said that it was noteworthy that in the past, the law had always concentrated on big businesses and neglected the small ones. This Bill was trying to accommodate small businesses as well. Business Unity had cited many examples of when work permits had been withdrawn by the Department. There should be rules and regulations. People know the story of Mr Harksen, for example, and the role he played before he come to South Africa.

Mr Esselaar said the training levy had not yet been scrapped, it was still in the current regulations. At lower levels of skills, it was too expensive and BUSA would be pleased if it were scrapped. BUSA acknowledged the need to track illegal immigrants, it further stated that the procedures involved here must be clarified. The processes used need to satisfy the Constitution. The Process has credibility, hence BUSA was presenting here, but it needs to be a fair piece of legislation. The review should set out limits and processes. There was the need to import skills, for example, miners were imported from SADC neighbours.

Mr Swart (ACDP) said that Section 8 was contentious and if business thinks it to be in violation of the Constitution then legal opinion should be sought.

Mr Esselaar said that they had not taken legal opinion but they were certain that the Bill was unfair. He was specifically concerned with the expectation to provide representation within three days. It was poor law and unfair.

Mr Pokroy (Law Society of the Northern Province ) was of the opinion that it was unconstitutional.

Business Unity raised further concerns to the effect that parts of the Aliens Control Act were reflected in the Amendment Bill. Section 8 was of paramount concern here. There could be a multitude of cases where the interests of the public were not taken into consideration.

The Chairperson asked Business Unity on its views of how the Board should be composed.

Business Unity replied that the Board was able to function perfectly well. There was little concern about the capacity of high-level people to be there. It was useful for the Department to have different views.

The Chairperson indicated that this would be taken into account. Business Unity would also be encouraged to meet with that particular level.

Law Society of the Northern Province submission
Mr Pokroy noted that the Law Society was concerned about the role of civil society, the repeal of section (7) and the watering down of Section 8 to such an extent that it was similar to the Aliens Control Act.

Mr Watters (Representative of the Immigration Law Specialist Committee: Law Society of the Northern Province) took the Committee through aspects covered by their document, and stressed their concern about the proposed reduced role of civil society in regulation making and in the Immigration Advisory Board. The submission stated that a definition of what was "work" had to be found, the different types of resident status had to be clearly defined, provisions for administrative justice had to be improved, transitional arrangements clarified, and international obligations strictly adhered to.

The Chair asked for clarity on the composition and functions of the Immigration Advisory Board.

Mr Watters replied that the Board had no executive powers but was solely in an advisory capacity making recommendations to the Minister. Members had, according to an ethical rule, to disclose their interests in a particular case, and withdraw if they had any, and furthermore not disclose information pertaining to their client(s) to the Board.

The Chair noted that the Law Society had representatives on the Board who could represent their interests, whereas the role of the Board was more to advise on broader policy issues

Mr Watters replied that the Board members were there to assist the Minister and not to be limited to a restricted mandate from their constituency.

Mr J. Pokroy (Representative of the Immigration Law Specialist Committee: Law Society of the Northern Province) explained that he, as a legal expert Board member, never felt that he was representing a constituency, and, as it were, removed his "constituency hat" in advising the Minister.

The Chair remarked that the proposed amendments were reducing the powers of the Board.

Mr J. Pokroy stressed that the Board was a necessary, useful resource, and that it would be unwise to remove the expertise that it offered in advising the Minister.

Mr Sithole Mshudulu (ANC) expressed his concern that wearing many different hats could result in the wearer being compromised, and asked whether there were other institutions, for example in the education sector, that were qualified and could be drawn in.

The Chair replied that the University of Cape Town had a unit which contributed their skills.

Ms A van Wyk (ANC) objected to ludicrous situations being used to illustrate weaknesses in the proposed amendment bill (par 58 of the submission) and asked for serious examples.

Mr Watters cited the case of a long-term guest on a farm in Franschhoek planting flowers thus requiring a work permit. More precision was needed, as well as a definition of "work".

Mr J. Pokroy felt that there was a danger in having too strong a representation of academics on the Board, whereas practical "coal face" expertise was what was needed.

PriceWaterhouse Coopers submission
Ms Linda Lamprecht (Senior Consultant: Tax and Legal Services; PriceWaterhouse Coopers) discussed their submission, stressing their concerns with the envisaged reduced public participation in regulation making and review, the proposed definition of "work", the ambiguities surrounding the Business, Work and Retired Persons permits (see submission for detail).

Ms S Kalyan (DA) objected to the situation where expatriates working in South Africa were over-paid in dollars. Extension of their stay in South Africa would make it too rosy for them.

Ms Lamprecht replied that multi-national companies usually require expatriates working for them in South Africa to be here for three to four years. Relocation of the expatriate's family was a severe cost. A condition for allowing them in could be to, at the same time, send a South African abroad. South Africans working overseas were also paid an expatriate salary in dollars.

Ms Kalyan asked whether some of the money earned abroad by South Africans was brought back into South Africa to which Ms Lamprecht replied in the affirmative.

Mr Mshudulu stated that the real situation differed from the ideal. The rich were hiding what they owned through trusts. Seeing that Ms Lamprecht was previously an employee of the Department of Home Affairs she had to be aware of the loopholes and mess of the past and how it should be addressed.

Ms Lamprecht mentioned the case where the fee of R 13 000 charged for permanent resident registration was disputed in court and it appeared that there was no rational research followed by the Department in arriving at that figure. The definition of "work" was of concern and would affect everyone irrespective of whether they were from Africa or any other country. On the question of whether "big guns" came and worked in South Africa and did not pay taxes, the SARS would certainly look at that aspect. For sportspersons, for example the World Cup soccer players, a visa or permit at the airport would be best instead of a work permit, seeing that they did not have an employer here, and the inordinate amount of paperwork that was required to fill in a work permit (work permit 16pp, chartered accountant certificate, detailed CV, motivation by employer 4pp). Examples of other countries who issued special permits were Germany, Canada and the USA, and also South Africa, so why change what worked well and create problems?

He continued that the Bill proposed to increase the required amounts for available capital tenfold and the number of employees from two to five, which would jeopardise the existence of many viable small businesses who were not a burden to the state. A detailed manual was required for use by Department officials as well as training from head office, as different offices had different interpretations of the requirements.

The meeting was adjourned.