Immigration Amendment Bill: deliberations

Home Affairs

10 August 2004
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Meeting report

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

Chairperson:
Mr H Chauke (ANC)

Relevant documents
Immigration Act 13 of 2002
Immigration Bill [B11-2004]
Comments and Suggested Amendments to Bill

SUMMARY
The Committee considered the last of the comments raised during the public hearings and proposed amendments. In Clause 27 the proposed amendment to require the marriage to be in existence for a period of three years was considered and the Committee suggested making it even five years before a permanent residence permit could be granted. The Minister was committed to stamping out marriages of convenience. The proposed amendment to Clause 35 sought to deal with stow-aways and the Committee sought clarity on the actual procedure followed by the immigration officers at the ports. Concerns were raised during the public hearings regarding the rights of children in the Bill, but the Department submitted that this would best be dealt with in the Child Justice Bill. The Committee asked if it would be possible to expedite the coming into operation of the provisions dealing with marriages of convenience but the legal advisors cautioned against retrospectivity. The proposed Section 27(c) was now being brought in line with Section 15 and the Committee considered whether the period within which the investment should be reduced from two years to 9 months in Section 27.

MINUTES
Clause 27
The Director-General stated the he would be working from the "Comments and suggested amendments to the Bill" document (attached) which noted that, during the public hearings, the Law Society of the Northern Province raised concern with Clause 26(b)(ii) of the Bill. He related the Department's view as contained in the document that there was no reason in Clause 26(b) why the permit should not lapse when such a marriage ceases to exist.

He stated that he would like to raise a matter which was not contained in the document nor was it raised in the public hearings. It arose out of the concern which was very much in the public eye, particularly the month of August in which the Minister has launched a campaign against fraudulent marriages. The Department requested that the Committee consider tightening this section of the Act, apart from the amendments proposed in the document, to require a couple to remain married for a period of 3 years before they can apply for a permanent residence permit. This would discourage marriages of convenience for the sake of acquiring permanent residence status in South Africa, and the fraudulent spouse would then be issued with a temporary residence permit for those three years after which s/he would then receive a permanent residence permit. The Director-General apologised for introducing this new amendment at this stage of the proceedings, but it was an important issue.

Mr S Swart (ADCP) asked whether this would also apply to the homosexual and heterosexual spousal relationships as well.

Ms D Thlagale, Legal Advisor to the Director-General, responded in the affirmative. She stated that the words 'spousal relationship' in the proposed Section 26(b)(ii) included marriage as well as homosexual and heterosexual long-term relationships.

The Chair requested the Department to further explain the new amendment.

The Director-General replied that the Department has not yet formulated a specific amendment, but a condition would be created in Section 26(b) for the granting of a permanent residence permit that the marriage must be in existence for a period of 3 years. This would then replace the current proposed Section 26(b)(ii).

Ms S Kalyan (DA) questioned the success of the campaign if no results have yet been produced. Furthermore, what were the other implications of the current practice of granting the spouse a temporary residence permit on matters such as whether that spouse would be able to work in South Africa etc.

Ms N Gxowa (ANC) stated that the amendment proposed was aimed at tightening the current provision to eradicate the marriages of convenience, and was not aimed at launching the campaign.

Ms A Van Wyk (ANC) agreed with Ms Gxowa. She stated that the Director-General merely used the campaign to illustrate the problem, but the success of the campaign was not really relevant to the proposed amendment. The legislation would address the loophole with or without the help of the campaign. The imposition of the 3 year period was not draconian and it would not affect the person's rights, in fact there were other jurisdictions who imposed similar limits.

Mr Y Wang (ID) informed Members that either Singapore or Taiwan imposed a 7 year period before a permanent residence permit would be issued.

Ms Kalyan agreed that it needed to be tidied up, but her concern was with the implications of- and reasons for the imposition of a 3 year period.

The Chair questioned whether a 3 year period was in fact enough, because the legislation should make it very difficult for such marriages of inconvenience. This was a very serious problem because people have now made a business out of arranging these marriages. Perhaps a period of 5 years should be imposed.

Mr Swart (DA) stated that the DA would support a 5 year period.

The Chair stated that this matter would be revisited during a clause-by-clause discussion on the Bill.

Adv K Malatji, Chief Director: Legal Services, suggested that an important consideration would be the principle of reasonableness in deciding on the period to be imposed. The period imposed could be challenged in court by the spouse, perhaps even on the grounds that marriages between South African citizens were not held to such strict requirements but even they did not always last that long.

Ms Kalyan stated that the spouse could also challenge it by comparing the current average lifespan of marriages in South Africa. The issue of marriage by proxy should also be addressed by the legislation because there was a whole section of the Indian and Muslim community in South Africa who married by proxy. She stated that she knew of many cases in which Pakistani's would enter the country, pay a fee of R10 000 or so, and would be married to a South African woman.

The Chair agreed that this must be addressed in the legislation.

The Director-General stated that, with regard to the reasonableness issue, Section 26 of the Act stipulated that a permanent residence permit could be granted to a person who has held a work permit for 5 years. It was thus reasonable to have a similar period requirement for marriage in Clause 27.

He stated that the Department was also considering amendments to the Marriages Act to also address the problem. The Department's appointment of marriage officers would also be tightened up, as well as corruption in the Department. One of the saddest examples of such fraudulent marriages was the number of cases of foreigners who appeared to seek out South African women who were dying of AIDS. They would then marry them before they die and seemed to time the marriage so that the death follows as soon after as possible, and would then apply for permanent residence. The proposed amendment would then discourage this kind of thing.

The Chair stated that this would be dealt with via the amendments to the Marriage Act, which must come to Parliament as a matter of urgency.

Clause 28
The Director-General stated that following issue raised during the public hearings was the difference between 'immediate family' for relatives permit with the first step of 'kinship' in the proposed Section 27(g), as raised by the Law Society of the Northern Province. The Department's view was that the two provisions were different because Section 27(g) dealt with a permanent arrangement, whereas Section 18 dealt with a temporary arrangement. The Department therefore does not recommend that this concern be included in the Bill.

Clause 35
The Director-General stated concern was raised with the restrictive nature of the proposed Section 34(11), and the Department proposed an amendment to Section 35(8) which would force the owner to remove the illegal foreigner.

The Chair noted that the Committee agreed to the amendment.

Mr W Skhosana (ANC) asked whether this amendment dealt with stow-aways and, if so, how exactly would the owner of the ship remove such a person

The Director-General replied that a stow-away was just one form of the problem that the amendment was trying to address. But the problem dealt with in the amendment was to obligate the person in charge of a conveyance, like a ship or aeroplane, to ensure that everybody they carry has the necessary documentation to gain entrance into the country. This was very common with airlines as they were fined, as was the case in many other countries, if they allowed passengers to board who did not have correct passports or visas. When it came to passenger liners, for example, it was more practical to require the owner to keep the person on board and return them to the point of departure, if this was possible.

The Chair asked the Department to explain what the procedure was when the ships docked at our ports, and whether immigration officers would be sent immediately.

Mr Willem Vorster, Assistant Director: Aliens Control, replied that the ship would be 'cleared' when it docked, which meant that those person who want to leave the ship would be allowed to do so and those who wished to remain on the ship would be recorded including the crew. Once the ship was cleared those who were to remain on the ship remained the responsibility of the ship's captain, and the ship's captain would have to have those people on board when his ship left the port again. If he did not abide by this requirement he would forfeit a large amount of money in respect of each person that was not there.

The Chair asked who exactly within the Department would monitor this.

Mr Vorster responded that the immigration was the third person to board the ship. The first would be the pilot who would bring the ship into the harbour, the second would be the port health authority and no-one was allowed to enter the ship until the port health authority has discharged his obligations. The reverse procedure would then happen when the ship left the port, and the ship may not leave until the immigration officer has verified that each person that should be on board was in fact on board. For this purpose the Act stipulated that the immigration officer was authorised to require all necessary persons to appear on deck at the same time. This could in some cases cause a delay of 24 or 48 hours and, because the captain could not allow such a delay, they gave their full support

The Chair asked whether the immigration officers would be posted full time at the ports and airports to monitor this.

Mr Vorster replied in the negative. The South African position mirrored the international practice in that once the ship was cleared everyone would be able to move as they liked.

The Chair stated that the Committee noted this matter.

Section 46
The Director-General stated that the Department noted the comment made during the public hearings to add more qualifications for immigration practitioners, but felt it would be better placed as part of the long-term review process.

Rights of Children
The Director-General stated that the Department noted the concern raised during the public hearings regarding the rights of unaccompanied minors in relation to immigration legislation. It was however of the view that the rights of children could not primarily be addressed in this legislation without a principle statute that would regulate the rights of children in general. The Children's Bill would address this in greater depth.

Review Committee
The Director-General stated that concerns were raised during the public hearings with the establishment of a review committee. The Department proposed the rejection of this suggestion as it was another attempt to privatise the Department's functions.

The Chair agreed.

Transitional arrangements
The Director-General stated that these transitional arrangements sought to ensure continuity.

The Chair proposed that a special provision be inserted to deal with the marriages of inconvenience, as it was an important matter.

The Director-General stated that he would consult his legal advisors to check whether this was possible.

Mr P Prinsloo, State Law Advisor, stated that it must be remembered that it was only after the married was concluded that the permanent residence permit would be applied for. He hoped that the Bill would be finalised rather quickly and perhaps only the regulations would take a bit of time, but if nothing was done then the permits that were currently in existence would be valid. In the case of many of the marriages that would take place in the foreseeable future, the applications would still perhaps be pending at the stage when the Act was passed. A provision could perhaps be introduced which would make this provision retrospective, but this was always difficult.

He advised that the Department begin with a clean slate when the new Act comes into operation. If it were made retrospective there would be too many complications that were not foreseeable at this stage. It is often a case that hurried matters such as this in fact cause many of the problems. This was ultimately the Committee's decision, but he cautioned against retrospecitivity.

The Chair stated that this would be considered further.

Further amendments proposed by Department
The Director-General that the last portion of the document contained suggested amendments which occurred to the Department after the Bill had been submitted to the Committee.

'status'
The Chair noted that no concerns were raised with this amendment.

Section 7(1)(b)
The Director-General stated that this amendment sought to replace the words 'prohibited persons' with 'illegal foreigners'.

The Chair noted that no concerns were raised with this amendment.

Section 7(1)(e)
The Director-General stated that this was a complete reformulation.

Mr S Vundisa asked whether the Department would actually ensure that there were sufficient immigration officers at our borderposts with neighbouring countries, because currently there were very few if any at all. He asked whether the Department had sufficient funds to employ more immigration officers.

The Chair stated that there were only a small number of borderposts that were not currently manned by the Department, which the Department mentioned in its turnaround strategy as well as its plans to address this. In fact the strategy stated that the Department would have officials at each borderpost within the current financial year.

The Director-General responded that, within the current budget, the Department has committed to taking on over 1000 additional new staff, over and above immigration officers. The Department was currently engaged in transforming its immigration service into a national immigration branch, and it as bout to finalise the process of appointing a Deputy Director-General of the national immigration branch and, as stated in the Department's strategic plan presented to Parliament a few months ago, it was the Department's plans to extend its presence to all borders in the country as well as all foreign missions.

Deletion of Section 7(1)(f)
Ms Thlagale stated that the reason for the proposed deletion because the Bill stipulated that a prohibited person would not be granted a visa or temporary residence permit at all, and this provision thus became redundant and should be deleted.

The Chair noted that no concerns were raised with this amendment.

Section 10(5)
Ms Thlagale stated that this was merely a rephrasing to improve the formulation, no substantive amendments were effected. It explained that the conditions may be prescribed by regulations and not the Director-General's 'good cause', as was the current interpretation.

The Chair noted that no concerns were raised with this amendment.

Section 10A(2)
Ms Thlagale stated that the amendment sought to include a reference to temporary residence permits, which was omitted in the Bill.

The Chair noted that no concerns were raised with this amendment.

Section 10A)(3)(b)
Ms Thlagale stated that this should be deleted because Section 1 defines a passport, and it was thus redundant to mention 'the person mentioned in the statement' in this provision.

Mr Swart (DA) proposed that the word "if" in the proposed Section 10A(3)(b)(i) should be replaced with an 'and'.

Mr Prinsloo stated that he would consider this amendment and suggested that the phrase "the holder of a passport" might also fall away. All the corrections would be present in the A version of the Bill.

The Chair stated that this matter would be flagged for further consideration.

Section 13(1)(a)
Ms Thlagale stated that this was a technical amendment, and was reinforced by Clause 47(b).

Section 16(1)
Ms Thlagale stated that this provision allowed for the owner of a ship to issue a crew permit, but this was never done in practice and should thus be deleted.

The Chair noted that no concerns were raised with this amendment.

Section 21(4)(d)
Ms Thlagale stated that the NEDLAC report requested the insertion of a provision which would allow the Director-General to waive the requirement in Section 21(2)(c), and this would be introduced as a new Section 21(2)(d).

The Chair noted that no concerns were raised with this amendment.

Section 27(c)
Ms Thlagale stated that Sonnenberg Hoffman and Galombik Attorneys commented that Section 27(c) was not aligned with Section 15, and this amendment effected this alignment.

Mr Swart (DA) stated that the Committee was yet to decide on the appropriate time period within which the investment should be made in this provision.

Mr Thlagale replied that a period of 9 months was suggested by the Committee but it was not adopted, and once a time period was adopted then Section 15(1)(a) could then be amended as well.

Mr Swart (ACDP) asked whether the amendment to reduce the period from 24 months to 9 months could be challenged on the grounds of reasonableness.

Ms Thlagale replied that she did not think it would be challenged because part of the requirements stipulated in the regulations was that the foreigner would have to have available funds abroad before this could take place. The Department believed that the person should have decided where to establish the business etc by the time they applied for a permit, and thus the 9 month period was reasonable. The other requirements spelt out in the regulations would also indicate whether the person would be granted a permit or not.

The Director-General stated that a means will be found to accommodate this in the A version of the Bill.

The Chair asked whether the Department was consulting other government departments such as the Department of Trade and Industry, who dealt directly with investments.

The Director-General responded that the Department would consult them before drafting the A version of the Bill.

The Chair noted that Members agreed that 9 months was sufficient.

Mr Prinsloo questioned the need to specifically state the time period in the legislation, because once it was included the matter was set. The Department could even run into legal trouble if the applicant cannot comply with this condition. He proposed that the Department be given time to really consider this matter thoroughly before the new Act is implemented. If the time period was really needed then it could then be included in the regulations instead.

The Chair stated that Mr Prinsloo's point would be taken and this matter must be flagged for further discussion.

Amendments proposed by Committee
Clause 39
Mr Swart (DA) stated that the words 'occupier of a premises' in proposed Section 40(1) should be replaced with 'the owner', as proposed by one of the submissions, because an occupier might not be fully aware of all the developments.

The Director-General stated that, as he mentioned at the beginning of the meeting, the Department has not included all the technical amendments in this document as those would all be contained in the A version of the Bill.

Mr Prinsloo replied that the problem was that the occupier would usually be the person doing business on the premises such as running the hotel, for example, and would not necessarily be the owner. He preferred a more direct reference to the occupier as that was the person running the business.

The Director-General stated that Mr Prinsloo has missed the point. The concern was expressed during his absence last week that the word 'occupier' was not defined in the Act, and this term must then simply be defined in this Bill.

The Chair stated that this matter would be considered further.

Clause 45(9)
Mr Swart (DA) proposed that the words "duly authorised" be inserted before "civil servant" in this provision, as the current wording allowed any civil servant to escape liability.

The Director-General stated that this would be effected.

Mr Swart (DA) proposed that a clause-by-clause discussion of the Bill with all the amendments proposed be engaged once the Department has consolidated it into the A version of the Bill.

Ms Van Wyk agreed.

Way forward
The Chair stated that the Department would now have to consolidate all the amendments into the A version of the Bill, and the Committee would then convene tomorrow afternoon to go through the consolidated Bill. He noted that Members agreed.

The meeting was adjourned.

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