Immigration Amendment Bill: deliberations

Meeting report

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

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Proposed Amendments to Immigration Amendment Bill [B11A-2004]
Immigration Bill [B11-2004]

Department delegation: Mr B Gilder, Director-General (DG); Mr Vorster, Mr Goosen; Mr Matieba and Legal Advisors Ms Digkeledi and Adv Malatji.
State Law Advisors: Advocate P Prinsloo and Advocate D Erasmus.

SUMMARY
The finalised proposed amendments to the Immigration Amendment Bill were presented to the Committee. A major talking point was Clause 27, which permitted residential permits on the basis of marriage or a 'good faith spousal relationship' with a South African. There were concerns that this legislation could be abused. The Director-General pointed out that the amended Clause 13 would allow World Cup 2010 footballers to work professionally in South Africa. He further explained that the Department's existing budget would cope with financial implications of the Bill. The Bill would be adopted the following morning.

The Committee then discussed their objection to an 'adult shop' operating in full view of Parliament. The Chairperson asked the Legal Advisor to investigate the legality of its operation, and to report back on the relevant legislation in the meeting of the next morning.

MINUTES
The Director-General presented the finalised amendments to the Immigration Amendment Bill.

Discussion
Members expressed confusion at certain functions of the Director-General addressed by the Bill.

The DG explained that his omission from the appeal process of deportees, as stated in Clause 9, would only apply to minor cases, where it was felt the amendment would assist to shorten the process. The Chairperson noted that this change would be made for practical and not 'centralising' purposes

Ms M Maunye (ANC) and Mr W Skhosana (ANC) objected to Clause 9. They both felt it was important that appeals went to the Director-General first, and then if necessary, to the Minister.

The DG explained that Clause 9 saved time and expense on hearing minor appeals. The Chairperson was satisfied by this explanation.

The DG said that the proposed amendment to Clause 10 had been made at the request of the Minister.

Mr M Swart (DA) asked if the amendment would not place undue 'political pressure' on the DG.

The DG replied that with the amendment to Clause 10 (amending Section 9 of the Act), that sub clause 9(3)(c)(ii) would be handled by the Minister, and sub-clause 9(3)(c)(i) by himself. There would not be any political pressure on him.

Mr Swart said that in the amendment to Clause 10, 'decision' should read 'final decision.'

The DG replied that the initial 'decision' was rather a notice of intention. Advocate Prinsloo added that it would be of no significance to have the correction inserted. Mr Swart was satisfied by this response.

The Chairperson asked if Point 2 of the proposed amendment to Clause 13 identified prescribed persons.

Mr Vorster noted that a list of prescribed persons would be virtually endless. He explained that the aim of the amendment was to define conditions underpinning the said prescription. He said that football players visiting South Africa for the 2010 World Cup would now be acknowleged by the amendment.

The DG explained that Clause 27 would allow a temporary permit of five years before entitling permanent residence, as long as the terms of marriage or good faith spousal relationship remained. Only three months were allowed for the temporary permit holder to apply for his/her entitled permanent residence.

Mr B Mashile (ANC) asked how the Department might verify the good faith spousal relationship.

The DG replied that the Department would have to trust the relationship to be genuine. The motivation of the Clause was to deter persons from deceiving the Department. However, it was imperative that the Department privilege genuine participants in a marriage or good faith spousal relationship.

The Chairperson suggested that the Department summon both spouses to the Home Affairs Office once a year, or twice during the term of five years, to renew the temporary permit. This would allow for the Department to verify the relationship and deter persons from abusing the Clause. The DG replied that such measures would unfairly burden persons in genuine marriages or good faith spousal relationships.

Mr V Mobuyakhulu (ANC) offered a scenario where the spouses registered a business together, and then the good faith relationship terminated before five years. What status would then apply to the foreigner? There was strong sentiment among the ANC that this foreigner should lose his/her temporary permit.

Ms Digkeledi replied that the foreigner would lose the original grounds for holding a permit, but should be able to acquire a different permit as a registered business owner. It would require the Department to waive the Capitalisation requirement.

The Chairperson asked if a time frame existed for a foreigner to depart from the country should his/her permit be invalid. The DG replied that this person would be allowed to stay pending reapplication for another permit.

Mr Mashile asked whether divorce papers should be required by the Department to terminate a temporary permit based on Clause 27. The DG responded that the temporary permit did not apply solely to married couples. Therefore it would not be possible to close a permit on the basis of divorce.

Ms S Kalyan (DA) asked what would happen if, during the conditional five years, the marriage produced children, after which the South African spouse died. The DG said that a death within five years would constitute the loss of the temporary permit. However, if it occurred within two years of acquiring permanent residence - in which time it is compulsory to renew the permit - the foreigner would not lose his/her permit. Where children were involved, the spouse would have new grounds for obtaining permanent residence.

Ms Kalyan asked for clarification over the financial implications of the Immigration Amendment Bill.
The DG noted that the Department was obliged to declare all financial implications of the Bill. Costs would involve retraining of immigration officers, and reviewing of contractual forms. He said the existing budget would be able to cover these.

The Committee agreed to conduct the final vote the following day.

Adult shop near Parliament
The Chairperson voiced his concern about an 'adult shop' situated in clear view of Parliament. He asked the legal advisors to research the present legislation protecting these shops, because he wanted it resituated where it would not offend Parliamentarians.

The meeting was adjourned.