Immigration Amendment Bill: deliberations

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
10 August 2004
IMMIGRATION AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Immigration Amendment Bill [B11-2004]

SUMMARY
The Director-General of Home Affairs responded to submissions made on the Bill. He welcomed the submission by the Association of Immigration Practitioners of South Africa (AIPSA) that the capital requirements for a business permit be invested within a specific period. He felt that the proposed period of nine months was fair and reasonable. The Director-General, in response to concerns raised by the Law Society of the Northern Province, confirmed that any permit issued under the existing Immigration Act would continue to be in force, as the amendment Bill did not interrupt the period of existence of the permit. He also pointed out that people who do not meet the financial requirements for a retired person's permit could still be issued with the permit as the Department has the power to have the requirements waived under special circumstances.

Both the Department and the Committee were worried that there are people who abuse the openness of the Refugees Act and international conventions. These people enter the country by deceit and when they are caught they apply for asylum. The Department is doing its best to tighten the system to reduce or eliminate the abuse, the Director-General said.

MINUTES
Mr B Gilder, Director-General: Department of Home Affairs, continued with the department's response to the submissions on the Bill.

Mr Van Niekerk (Sonnenberg and Galombik Attorneys) had expressed concern on the wording of clauses that deal with permits that may be extended to family members of the holder. They noted the concern but felt that the differences are of a technical nature and not a result of the amendments. The permit regime has been left unchanged at this point. The permit regime would be considered during the long-term policy review process.

Mr M Swart (DA) asked whether the Director-General or the Minister would determine the amount of investment referred to in clause 17. The Director-General replied that the amount would be prescribed in the regulations for which the Minister is ultimately responsible.

Clause 21
With regard to Business Unity South Africa's (BUSA) submission on the wording of the clause, the Director-General said that as long as the quota has not been filled any applicant who qualifies would be issued with such a permit. A lot of people would not have opted for a quota permit because it requires a portion of the salary to be deducted as a training levy in terms of the regulations. This discouraged people from applying for quota permit hence it is being removed. No quota has yet been determined and consequently the fund that was established for this purpose has no money in it. The creation of the training levy was merely implied in section 2(2)(g)(ii) and (iv) of the Act. The Department has proposed deleting the objects of the Act. The State Law Advisors are of the view that Regulation 28(2) was ultra vires.

The chairperson noted that an official from PriceWaterhouseCoopers had said that the levy was already being charged.

Ms D Tlaghale (Director-General's Legal Advisor) said that the statement from the official was incorrect. The Minister has to determine a quota before anybody could apply for a permit and no quota has yet been determined. It is inconceivable how a quota permit was applied for if no quota had yet been determined.

Mr Swart referred to a letter in his position signed by the Director-General. The letter refers to Passport Control Instructions (PCIs) 31 of 2003. The letter specifically states where to pay the 2%. This is the letter that the official from PriceWaterhouseCoopers was referring to.

Ms Tlaghale replied that PCIs are internal interpretative documents given to official to enable them to interpret the Act. The Department received a lot of queries from the public as to where to pay the money. Hence the Instructions were issued. The instructions were never implemented and the fund still stands at zero.

Mr Mashile noted that "permanent resident" is not defined in the Bill. The Bill contains a definition of a "permanent residence permit". He wondered if it is not appropriate to also define a permanent resident.

The Director-General replied that there are two different types of persons: citizens and foreigners. Foreigners are divided into three categories: (a) permanent residents, (b) those who qualify to reside or have the necessary document to reside in the country temporarily and (c) those who do not qualify to reside in the country. It is not possible to have one general definition of residency. Hence the definition of a permanent residence permit to the section in terms of which it is issued.

Clause 41

A concern was raised about the automatic expiry of a permit upon violation of a condition of the permit. The Department's view is that foreigners should have the responsibility of ensuring that they comply with conditions at all times. Section 32(1) provides for the Director-General to authorise a foreigner to remain in the country pending an application for status. This caters for people who may still qualify for subsequent permits but their permits have expired as a result of circumstances beyond their control. Section 50 of the Act provides for an administrative fine for those who negligently fail to renew their permits.

The definition of a "child" would be expanded to take a dependent adult child into account.

The Director-General welcomed the submission by the Association of Immigration Practitioners of South Africa (AIPSA) that the capital be invested within a specific period. He felt that the proposed period of 9 (nine) months was fair and reasonable.

The Chairperson felt that a period of 9 months is too long. The person might leave before the expiry of the nine months without making any investment.

The Director-General said that as things stood currently there was no period within which some capital must be invested.

Mrs S Kalyan (DA) asked when the nine months period starts running.

The Director-General replied that the period runs from the date of issue of the permit.

Mr Swart (DA) thought that the investment has to be made within two years. He referred to the proposed section 15(4). It obliges a holder of a business permit to submit proof of investment within two years of the issuance of the permit. If the investment has to be made within nine months then this section would have to change.

The Director-General replied that the proposed section relates to the submission of proof and does not specify the date by which the money must be invested. He agreed that the proposed section 15(4) would have to change if the Committee agree on nine months or any other period.

Mr D Erasmus (State Law Advisor) added that the proposed section 15(1) would also change and include reference to whichever period the Committee agrees on.

Mr P Prinsloo (State Law Advisor) said that it is important to clarify what investment means. The issue is whether one is concerned with bringing money into the country and putting it into a bank account or building a factory. The period of time that it would take to invest the whole amount differs. Hence proof of investment is required only after 24 months.

The Chairperson indicated that there are people who abuse the system. He referred to a situation where a foreign came into South Africa using a visitor's permit. That person saw a business opportunity and entered into a business with a South African. Some money was transferred to a bank account in South Africa but later withdrawn under mysterious circumstances on the same day.

The Director-General said that there are loopholes in the system. The Department wants to close the loopholes by ensuring that it is satisfied that there is genuine investment. There is a need for some flexibility around how the Department or Director-General satisfies himself or herself that there was an investment.

Mr Swart (DA) proposed that a person must within three months provide guarantees that the money would be invested within the stipulated time.

Mr Mashile supported the proposal. The Chairperson also welcomed the suggestion. He added that the provision should be clear because people might perceive this as a way of blocking foreign investment.

With regard to BUSA's submission that obliging state organs like hospitals to report might indirectly infringe certain rights, the Director-General said that it is important for the Department to tighten its immigration control laws. He appealed to the Committee to accept clause 42 of the Bill. If BUSA's submission were accepted it would become very difficult for the Department to control immigration.

PriceWaterhouseCoopers had submitted that if a husband and wife apply for a business permit together each must satisfy the minimum business investment criterion. Unless both persons obtain their own business permits one of the spouses would be prohibited from working within the business. The Director-General replied that the proposed section provides for the issuing of a permit to the foreigner's immediate family.

Ms Tlaghale said there was concern about when a permit lapses. The Law Society of the Northern Province was concerned that the present transitional arrangements do not address the question of what would happen to business permits issues in terms of the current Act once the new Act comes into operation. The issue is whether the period for which the permit has been in existence would be counted for the purposes of applying for a permanent residence permit. Section 53(2) of the Act provides that any permit issued under the Act would continue to be in force. In essence, the Bill does not interrupt the period of existence of the permit.

The Director-General said that PriceWaterhouseCoopers correctly stated that trust assets did not belong to individuals. However, they did not take s20 (1) (b) which provides for the requirement of the prescribed net worth into account. Therefore an applicant who is a trust beneficiary and can demonstrate that he or she has an income would qualify for a retired person's permit.

With regard to the Law Society of the Northern Province's concern over the affordability of the retired persons' financial requirements, the Director-General said that the example given is far fetched. The Law Society had given an example of a Mozambican who has worked in the country for 40 years and cannot afford to retire in South Africa. Anyone who had been in the country for that long would probably have applied for naturalisation. In terms of section 31(2)(d) the requirements may also be waived under special circumstances.

Mrs Kalyan asked the Director-General to indicate the special conditions that might warrant the waiver of the requirements.

The Director-General conceded that the question is difficult to answer. This is one of those clauses that allows for the use of discretion. The example of the Mozambican might be one such case.

Mrs Kalyan felt that it is dangerous to assume that people would apply for naturalisation given the high level of illiteracy in the country.

The Director-General said that it is highly unlikely for such persons to apply for a retired person's permit. It is easier for them to apply for exemption in terms of s30 (1) of the Act

Mr W Skhosana commented that there are people who are still regarded as Transkei citizens and not South Africa citizens. There are also women who are married to South African men but not recognised as South Africans.

The Director-General noted the comment and added that there are many people who are still regarded as non-citizens. The Department is trying to correct this. In most cases it is just a matter of replacing the old Identity books with proper documents.

The Chairperson said that there are people who could easily meet the financial requirements for retirement in South Africa. However, given their lifestyle and habits, they might squander all their money in a matter of days and become a burden on the State. The decision on who could retire in South Africa must be policy driven. If one put an amount of money that a person must have before he or she is allowed to retire in South Africa, one would disadvantage those who do not have millions. There are workers who contributed a lot to this country but cannot meet the financial requirements.

Mr Gilder remarked that the legislature, in its wisdom, introduced the retired person's permit. The permit is obviously designed for rich people. The provision is there for the Department to make exceptions. It is difficult to bend the provision to try and cater for everybody who is not rich.

Ms A Van Wyk (ANC) agreed that the permit was designed for the rich. There are ordinary people who contribute throughout their life through paying taxes and for services. Suddenly one has somebody coming to retire in South Africa who would not necessarily contribute towards the services in the same ways as others. Most people who have been in the country for years would apply for a different permit to the retired person's permit.

The Law Society of the Northern Province (LSNP) had submitted that clause 24 contravenes the Republic's international obligations with regard to the treatment of refugees. The Department recommended that the submission should be rejected. The clause is there to provide for situations where a person arrives in the country legally and wishes to apply for asylum. They would be given a permit that would enable them to get to a refugee reception officer.

The Director-General said there was a problem of people who abuse the openness of the Refugees Act and international conventions. They try and enter the country by deceit and when they are caught they apply for asylum. The Director-General gave an example of Chinese nationals who came into Johannesburg Airport on their way to Mozambique. They tried to sneak out of the transit lounge and were caught. Officials tried to put them on the plane that they came from but the pilot refused to take them onboard. They obtained the services of a lawyer and applied for asylum. The Department was obliged in terms of the Refugees Act to allow them into the country and they disappeared. When their lawyer was contacted he said that he was no longer representing them. This happens frequently and is a matter of grave concern. The LSNP feels that the clause makes asylum seekers and this is incorrect. The Law Society also referred to the Maratsanga case but failed to mention that he had been in the country illegally for 18 months. It was only when he was arrested that he applied for asylum.

The Chairperson noted that South Africa does not have refugee camps. Instead there is a reception area which is right inside the country. He asked what would happen if a person is granted permission to enter the country on the basis that he would apply for asylum but that person disappears. He also asked if clause 24 would prevent such kind of abuse. It is difficult to understand why the Department even goes to a point of engaging with people who entered the country illegally. Such people should have declared their presence as soon as they entered into the country. One does not even know if that person is a criminal on the run.

The Director-General replied that the clause is not wide enough to deal with the different kinds of problems he and the Chairperson identified. The Department would be proposing some amendments to the Refugees Act in due course. It also wants to expand its capacity to deal with processing applications for asylum. Certain major ports of entries would be declared as refugee reception offices.

Mr Mashile commented that extending asylum is a political issue. He proposed that the power to extend the relevant permits should be given to the Minister. The Minister might be allowed to delegate the power to the Director-General.

Mr K Morwamoche felt that the Director-General is the secretary of the Minister. He felt that giving the power to either the Minister or the Director-General makes no difference.

Mr Skhosana said that some officials from the Department wanted the power to be given to the Minister. Problems arise when "senior people" arrive in the country and apply for asylum following "political communication" that they might have had with somebody in the country. They go to the relevant offices and for some reason do not like the way they are questioned during the process. Some then decide to discontinue the process and go directly to the Minister. Hence there was a suggestion that there should be a person occupying a certain position who would process such applications. If that person is not the Director-General then it has to be somebody more senior than the Director-General.

The Director-General replied that the concerns raised are important but they are much more relevant to the Refugees Act and not the Immigration Bill. A Clause 24 permit does not involve any assessment of a claim to asylum. South Africa is obliged by the Refugees Act and international conventions to allow anybody to apply for asylum. It only seeks to ensure that in cases where an application for asylum cannot be processed at the point of entry, an applicant should be issued with an Immigration Act permit to allow him or her to get to the nearest refugee reception office to start the process. There is no judgement call to be exercised by the official at the point of entry on the merits of the application.

The meeting was adjourned.