Immigration Amendment Bill: hearings

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
5 August 2004
IMMIGRATION AMENDMENT BILL: HEARINGS

Chairperson: Mr H P Chauke (ANC)

Documents handed out:
Immigration Amendment Bill (B11-2004)
South African Migration Programme (SAMP) submission
Sonnenberg Hoffman Galombik: submission
National Economic Development and Labour Council (NEDLAC): Agreement
Western Cape Immigration Practitioner Forum
COSATU and NUM joint submission
Mr Makowe submission
Ms M Lee submission

SUMMARY
Four organisations made submissions to the Committee on the Immigration Amendment Bill. The SA Migration Programme emphasized the importance for the whole sub-continent of a thorough overhaul and eventual rewriting of an Immigration Act for South Africa. The present hastily concocted Act as well as the Amendment Bill were in many ways defective, such as the lack of opportunity for public involvement and the composition and functions of the Immigration Advisory Board to the extent that routine litigation and even constitutional challenges were to be expected. Sonnenberg Hoffman Galombik welcomed proposed changes which would ease the requirements for entry into South Africa, especially of skilled and affluent foreigners, while NEDLAC was of the opinion that the Immigration Act had to be re-written, not just amended, but that much more time than up to the end of September (demanded by the President) was required for that. COSATU / NUM saw the present effort of revising the Immigration Act as part of a long-term process of rectifying injustices to workers from neighbouring African states, which would eventually result in a just dispensation and proposed a number of improvements in the proposed stipulations of the Bill to ease the burden on immigrant workers.

MINUTES
South African Migration Programme (SAMP)
Prof Jonathan Klaaren (Professor of Law at the University of the Witwatersrand) took the Committee through the short document prepared and submitted by SAMP (see document). In connection with Section 8 of the Act, Prof Klaaren emphasized that the Constitutional Court wanted to work within the structure of the Act but expected the Act to measure up to the required standards. They were not in favour of the existing Section 8.

Discussion
Ms A van Wyk (ANC) expressed concerns about the membership and functions of the Immigration Advisory Board, the inadequate provision for public consultation, and the lack of differentiation between applicants at the borders and applicants from inside the country.

Prof Klaaren stated that their concern was that the dual functions of the Immigration Advisory Board would dilute the civil society role as well as the interdepartmental co-ordination role. A dedicated structure combined with good leadership was required for interdepartmental co-ordination. The requirement for real public consultation should be stipulated clearly in the law. Requirements for administrative justice and court jurisdiction for review should be written into the Act to establish the framework for whatever details might be required.

The Chair asked whether, in the SADC countries, there were precedents for public participation
and consultation.

Prof Klaaren replied that he collaborated with Law Professor Timba from the University of Dar-es Salaam in producing a 150-page report for an IMDSA (Immigration Dialogue for Southern Africa) meeting in December, covering migration and population legislation in eight or nine of the SADC countries. The South African Immigration Act provided for more public consultation than in the other countries. The Bill was not anti-human rights and gender equality. These were difficult areas, and their contention was that, seeing that one goal was human rights and gender equality, it should be put into the Bill.

Mr K W Morwamotche (ANC) asked whether long-term policy review was at issue and whether there were constitutionality issues involved.

Prof Klaaren replied that constitutionality issues were not specifically at stake and that the Bill was not a deep policy review. It was clear that, on a number of issues such as administrative justice, the Department of Home Affairs would be facing routine litigation based on inadequacies in the Immigration Amendment Bill.

The Chair enquired whether SAMP would participate in formulation and review of policy, to which Prof Klaaren agreed. There were issues such as the composition (the groups of people represented) and powers of the Board that were to be addressed.

Prof Klaaren supported the redefinition in the Bill of the function of the Board as an advisory body, and supported a separate body for inter-departmental liaison. Those two functions had to be separated.

Mr M Swart (DA) expressed reservations about the requirement for making use of Chartered Accountants in assessing the financial position of applicants.

Prof Klaaren said that SAMP had not done any detailed study on the issue. The experience with outsourcing to private Chartered Accountants had not been a great success. The issue, especially with work permits, was quite complex. They would recommend leaving CA's out.
Immigration legislation for South Africa was of crucial importance not only for South Africa but also for the region. There was intense interest from some Southern African countries such as Namibia and Mozambique in the process of establishing the Bill and Act.

Sonnenberg Hoffman Galombik
Mr G van Niekerk (Partner: Sonnenberg Hoffman Galombik) led the Committee through the document containing their submissions. He suggested that legislation should always be pruned to the bare essentials to avoid litigation. He sited instances of clients of his firm, like film companies, who brought scarce skills into the country and suggested that it be made easy for them to conduct business here. Service at some South African embassies in foreign countries was smooth and quick, which was not always the case in South Africa. The Department of Home Affairs' website should be updated. Intra-company transfers of expatriate employees often lasted longer than two years and that limitation in the Bill should be eased. They supported the abolition of the 2% training levy. The uncertainty in respect of definitions of foreigners who were permanent residents, temporary residents and citizens needed clearing up.

Discussion
Ms van Wyk queried the presenter's concern about the automatic expiry of the status of a foreigner, seeing that the conditions and requirements were spelt out clearly. The obligation to comply rested with the person involved, not the Department.

Mr van Niekerk insisted initially that a hearing according to due process should be required before status is lost, but then conceded the point.

Mr Swart asked whether retaining Section 8 of the Immigration Act would solve the difficulty with review of a Minister's decision, to which Mr van Niekerk replied in the affirmative.

Mr S A Mshudulu (ANC) thought that it appeared that the clients of the presenter to which he was referring were exclusively in a high-class category, and that therefore his contribution was limited as it did not include issues related to unskilled people.

Mr van Niekerk cited examples of immigrants from Africa who contributed to our economy after acquiring skills here, like a refugee from Burundi who graduated here as a marine engineer, and four hundred students from Eritrea on World Bank grants studying in South Africa. It was also a fact that people with scarce skills came predominantly from the USA, Europe and the East.

Mr Mshudulu maintained that the Bill should aim at improving the lives of South Africans but not promote xenophobia. It must be established whether multi-national companies benefit South Africa or not and whether skills transfer actually happened.

Mr van Niekerk said that the running of the port at Coega was a highly technical job which, if well done, resulted in huge benefits for our country. That kind of expertise was not necessarily available in this country, as was shown by the poor performance of the port of Durban. Skills transfer was essential, also because South Africa was the locomotive for the NEPAD initiative.

Mrs S V Kalyan (DA) wondered why, while South Africans had to apply for a work permit overseas, foreigners would not require one. Would that not be dishonest and out of line with international practise, she asked. Her son, who was an actor, had work taken away by foreign companies bringing in their own technicians and actors.

Mr van Niekerk replied that if a foreigner does business in another country which was an extension of his work in his own country, a three-month visitor's visa should suffice. Foreign companies operating in South Africa should comply with the same equity requirements as local companies. If foreign companies did not bring their work here, those jobs would then also not be here anyway. Working here and being paid here with just a visitor's permit would be illegal.
It was very difficult to obtain any kind of permit in the USA.

National Economic Development and Labour Council (NEDLAC)
Mr Herbert Mkhize (Chairman of NEDLAC Immigration Task Team) informed the meeting briefly about NEDLAC's status, its composition of organized business, labour and government, and functioning in seeking agreement and appraising parliamentary processes. He deplored the absence of a policy framework, which made it difficult to appraise the amendments to the Act. They had tried, at NEDLAC, to align and clean up the Act to make it less tedious and onerous, keeping in mind that there was going to be a long term policy review of the entire Act. The protocol in NEDLAC was that once agreement had been reached on any issue, it could not be reconsidered or revisited. This did not mean that the participants at NEDLAC were barred from making presentations of their own through other channels.

Discussion
Mr Mshudulu aired his concern about whether workers who were not part of collective agreements could also enjoy protection under the provisions of the Act, and about the conditions of employment for farm workers leading to exploitation of these workers.

Mrs Kalyan was concerned that after the lapsing of a work permit a definite time-frame be stipulated for pursuing rights of recourse, or it could drag on for months.

Ms van Wyk asked for comment on Nedlac's definition of work.

Mr Mkhizi said that NEDLAC failed to define work although they tried. They found that identifying the employee was a very complex issue. There was a strong urge to scrap the entire Act but, seeing that the President had asked for at least a review before the end of September, there was not time enough to work through an elegant new Act. Collective bargaining systems leading to agreements were robust in South Africa, of which they were proud. Employees outside the bargaining system were protected and best catered for by legislation. Whenever special skills were required by industry, they, when applying for permits, would have to demonstrate that those skills could not be obtained locally. For cases involving the lapsing of permits, the correct wording would have to be found to avoid processes stretching over months or even years. In evaluating applications for permits, experience, as opposed to just superior credentials, would be critically important.

COSATU and National Union of Mineworkers (NUM)
Mr Fred Gona (NUM) referred to the long history of engagement with citizens of other Southern African countries through the migrant labour system introduced after the discovery of diamonds and gold. After 1994 the problems were starting to be addressed through meaningful consultation. Problematic issues in the existing Act were being addressed, such as the training levy of 2% (which was never implemented); the training fund; the unacceptably expensive involvement of Chartered Accountants; immigration courts which went against the justice system and was rife with abuse and corruption, and overly rigid requirements e.g. for permits. The Bill was an initial step in a long-term process which would require commitment to a deliberate policy. This should take into consideration the historical suffering of immigrants from Africa as opposed to those from Europe and America, including cross-border raids by the previous regime on other Southern African countries.

Ms Prakashnee Govender (COSATU) reminded the Members that they were before the Portfolio Committee two years before, but were optimistic that real progress could now be expected. They were representing all workers, local as well as foreign, and expected the press to acknowledge that and address the basic problems connected with immigrant workers in a balanced way, and not just fan the flames of xenophobia. They were tabling a modest number of demands in view of the expected opportunities afforded by the envisaged long-term policy process.

Discussion
Mr Mshudulu cited the predicament of farm workers when their permits lapsed and then had to vacate their residences.

The Chair referred to the old problem of migrant workers from Lesotho and Mozambique taking up jobs which could have gone to local workers.

Mr Gona said that there was an agreement with the mining industry to eradicate the hostel system by converting the hostels into family units. Individual mining houses agreed to allow expatriates whose permits lapsed to stay on until a decision on their appeals had been made. They were in favour of immigration being regulated so that "the floodgates did not open".
Illegal entry of foreign workers into South Africa had to be dealt with by the relevant authorities.

The Chair thanked the presenters and adjourned the meeting.