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SOCIAL SERVICES SELECT COMMITTEE
5 June 2001
INTERNATIONAL MIGRATION WHITE PAPER AND IMMIGRATION BILL
Chairperson: Ms Jacobus (ANC)
Departmental Briefing Paper (See Appendix)
Revised draft of Immigration Bill approved by Cabinet, tabled June 5, 2001
[According to Ministry: ignore August date]
White Paper on International Migration: March 1999
The Department’s briefing looked at the policy evolution from the White Paper on International Migration adopted by Cabinet in 1999 to the Immigration Bill tabled today in the National Assembly. Among the issues focused on:
· the decision not to form a quasi-autonomous Immigration Service, but to leave that function squarely within the Department's ambit
· the Department's new emphasis on enforcing aliens exclusion provisions
· deterring illegal immigration, by focusing on employers, schools, and other institutions where illegal aliens obtain payment or services, making for an "activity based approach", in combination with the past program of police spot checks to verify individuals' documentation.
The briefing paper was presented by Director of Admissions and Aliens Control, Mr C Schravesande, This was followed by questions, most of which were answered by the Director and his assistant, with Dr Ambrosini (Advisor to the Minister) addressing specific matters.
The Chair asked if the policy changes reflected in the new Immigration Bill would be included in a revised White Paper, and were the recommendations of this Portfolio Committee considered?
In reply it was noted that the White Paper had been finalized and adopted by Cabinet in 1999, and thus the White Paper, which been the point of departure for formulation and refinement of policies reflected in the Bill, will not change. Dr Ambrosini indicated that the policy debate had "moved beyond" the White Paper, partially due to the extensive input of stakeholders, such as the Portfolio Committee, and the public after hearings held in each province, and added that a memo would be prepared clarifying the evolution of the debate, and how the revised Bill conforms to and differs from the positions articulated in the White Paper.
On the illegal aliens issue, Ms Ntlabati (ANC) questioned the new policy of "focusing on foreigners' activities", adding that this must surely be combined with focusing on the foreigners themselves.
In response it was noted that while police scrutiny of individuals suspected to be illegal aliens will continue, as appropriate, it may be more effective to combine such efforts with a focus on the workplace, schools and other institutions where illegal aliens may obtain payment or services, partially in order to deter employers from hiring illegals. It was also noted, in response to another question from this member, that the new Bill still covers protection of children with regard to their movements across borders.
Mr Mkhaliphi (ANC) voiced his feeling that the new provisions sounded "like pass laws in disguise", and questioned whether the policy of "soft border control" would continue. Along these lines, a member from the Northwest Province, noting the "free flow" of farm workers from Botswana across the borders into that province. This meant an increased AIDS threat due to the number of HIV+ women coming across and the Department was asked if it is "in control" of the border.
Dr Ambrosini replied that the reality is that the ports of entry are being controlled. However due to the scale of the exercise (which is difficult even for a highly resourced country - illustrated by failed US efforts to control its border with Mexico) and the lack of funds, the Department does not have "control" of the borders. Consequently, the new approach of also focusing on employers, schools, and other institutions as an element in attempting to deter or police illegal immigration.
It was also pointed out that the proposed SADC protocol on the free cross-border movement of individuals in the region could be problematic, and that while the Department is not promoting it, it is preparing to deal with it should it become a reality.
In response to Mr Mkhaliphi, it was noted that current "ad hoc concession/cross-border pass systems" dealing with specific communities in Swaziland and Lesotho would continue.
Replying to a question from Dr Nel (NNP), the new Bill will allow a visa holder present within South Africa to adjust his migration status to another category, which is generally not permitted currently. Another change to past policies was also noted: the recent court decisions concerning the rights of spouses of South Africans and the judicial instructions to amend legislation accordingly.
The length of a work visa for a skilled person under the new Bill will depend largely on how long an employer is willing to employ that individual, and to pay the premium fee called for by the new Bill. The premium fee will be used to fund programs to train South Africans, thereby reducing the need for foreign skilled labour. Funding training programs is a practical way to deal with the reality that skilled foreign workers cannot necessarily train locals while discharging their job duties here. Imposition of the fee will theoretically incentivize employers to use foreigners only for as long as necessary.
Ms Gous (NNP) asked about the criteria foreign pensioners need to meet in order to be allowed to retire in the country, noting that people in this category must not be allowed to become a burden to the state. The reply was that R1.5 million is the minimum amount. The burden will continue to be on potential foreign retirees to show that they are self-sufficient.
The Department noted that there are currently no "quota systems" though numbers of required workers are determined by some industries, such as mining and soccer.
The Chair commented that the Canadian quota system, which has numerical quotas to ensure that capacity meets priority skills needs, might be worth looking at. The Department replied that the Canadian policy is to encourage skilled migration in a manner which has not been adopted in South Africa.
The Chair asked about the function of the "immigration courts" and "immigration police" in the new Bill. The reply was that these courts, specialized along the lines of the Labour Court, would have jurisdiction of all immigration cases. This would result in streamlined handling by specially trained prosecutors and judges. The police would also be specially trained, particularly in the deterrent approach focusing on identification of illegals via the workplace, schools and other institutions.
In conclusion, the Chair noted that plans should be made to hold public hearings on the new Bill and for the Committee to tour border posts. She thanked the Department officials, and adjourned the meeting.
BRIEFING BY THE DEPARTMENT OF HOME AFFAIRS ON THE WHITE PAPER ON INTERNATIONAL MIGRATION
Cape Town: June 5, 2001
It is a great pleasure for the Department to make this presentation on the White Paper on International Migration on this day on which a new Immigration Bill implementing the White Paper is being tabled in the National Assembly, following its approval by Cabinet. The text of the Bill approved by Cabinet and submitted to Parliament is somehow different from the one finalised by our Department, which reflects the unprecedented length and intensity of the Cabinet deliberations on this matter. The Bill was discussed for two months in July and August of last year, and then again this year when a full day workshop was held on it. Throughout this period, the Bill was also subject to intense interdepartmental consultations. From this interaction, a vast range of amendments were made to the Bill at the request of the various Ministers and their Departments. Most of such amendments do not depart from the policy directives of the White Paper, which, as such, were capable of being implemented in different fashions through legislation.
However, in one respect the Cabinet deliberations made a fundamental policy change and that was the elimination of the notion of a distinct Immigration Service. In fact, after lengthy deliberation on the matter and having considered all relevant aspects, Cabinet resolved that migration control should be run by the Department of Home Affairs and not by an Immigration Service. They further resolved that the Immigration Board should only have advisory rather than executive powers. These are two important policy departures from the White Paper, which may need to be kept in mind. The process of policy formulation on migration control has been one of the most intense and detailed in the history of the new South Africa and has received a greater degree of Cabinet attention than any other matter ever considered by it. It may be advantageous to trace some of these steps.
On March 31, 1999, the White Paper was approved by Cabinet. Its approval resulted from deliberations of three Cabinet meetings during which several Ministers made written comments on the White Paper, which resulted in it being amended by Cabinet prior to its approval. Inter alia, written comments received from the Ministers of Labour, Welfare and Finance, were taken into account to produce the amendments on which Cabinet based the approval of this policy document. The relevant resolution states that Cabinet approved the White Paper for publication and submission to Parliament. The White Paper was published immediately after its approval.
In August 1999, the Department of Home Affairs [hereinafter "the Department"] requested comments on the White Paper to guide its drafting of the legislation necessary to implement it. The Department mailed a copy of the White Paper to all major stakeholders and role players, including political parties and Government departments. The period for comments closed on November 30, 1999.
In September 1999, the Department wrote to the Department of Labour to request that the White Paper be considered by NEDLAC, if applicable and necessary. In terms of the Act which established NEDLAC, only policy documents bringing about "significant changes" in "social and economic policies" are to be "considered" by NEDLAC "before their submission to Parliament". Even though doubting that the White Paper would fall into this category, the Department requested that it be considered by NEDLAC. The Act requires NEDLAC merely to consider, and not to approve, a policy document of the aforesaid type prior to its submission to Parliament. NEDLAC discussed both the White Paper and the Bill and negotiated several of their aspects between May and July 2000. This process led to several amendments of matters relating to work permits which were fed into the Cabinet process.
In November 1999, the Minister of Home Affairs presented the White Paper to the Home Affairs Portfolio Committee to whom the Department gave two presentations on the White Paper, one in July and one in October 2000. The Committee also solicited public comments on the White Paper which reflect submissions previously submitted by the Department. The Department provided written responses to most of such submissions, either in respect of the work of the Committee or in NEDLAC.
After November 1999, DHA began drafting the Immigration Bill necessary to implement the White Paper [hereinafter "the Bill"]. In some respects, the Bill which was drafted departs from the White Paper to reflect pressing demands which emerged from the public comments received on the White Paper. For instance, and merely to mention a major and a minor change of policy: in the Bill no provision was made for NEDLAC to participate in the process of policy formulation on migration matters, and the word "alien" has been substituted with the word "foreigner". In presenting the Bill to Cabinet, the Minister of Home Affairs pointed out these departures from the contents of the White Paper, seeking Cabinet approval for these aspects of the Bill, on the strength of public comments received.
On February 15, 2000 the Minister of Home Affairs published the draft Bill for public comments and prior to its submission to Cabinet. The 80-day comment period has been an additional opportunity for public input. The process of policy formulation on migration control has thus offered many opportunities for public inputs over and above what is customarily provided for, including public hearings and written comments on both the draft and final Green Paper, written comments on the White Paper after its adoption and the publication of a draft Bill. Moreover, a conference was held on July 6 - 7, 2000, to discuss the Bill with all stakeholders and role players within a broader policy perspective. Thereafter, the Bill was submitted to the process of Cabinet consideration and approval.
The formulation of a new migration policy has prompted a specialised but intense public debate, which has often unduly sought to expand the scope of the policy exercise undertaken by the Department of Home Affairs. For instance, some of the responses to the Department of Home Affairs’ requests for comments on the White Paper have sought to expand policy formulation on many issues which go beyond the jurisdiction of the Department of Home Affairs. This makes it necessary to clarify the relationship between the function of migration control and other line functions, and related aspects of their policy formulation.
Migration control relates to the determinations of the conditions under which foreigners may enter and sojourn in the Republic, either temporarily or permanently, or may become citizens. Only partially, does it set forth the conditions of what foreigners may or may not do within the Republic, as marginal exceptions to the general policies set out by other departments. For instance, migration control may set the policy that foreigners may not work in the Republic unless specifically authorised. When in the Republic, foreigners will conduct activities of work, tourism, education, business, investment and medical treatment. However, it is not the function of migration control to develop any policies on labour matters, education, tourism and trade and industry. Similarly, just a few months ago we received a submission from the Director-General of Land Affairs requesting that our legislation would impose limits on the power of foreigners to hold or own immoveable property in South Africa. It is not our responsibility to determine whether a foreigner may own a house or a tract of land in South Africa, which is a matter for the Department of Land Affairs to determine.
The White Paper and its implementing Bill have been carefully drafted to ensure that migration control has but a minimal impact on the formulation of policies which are the prerogatives of other departments. In the past, especially during the apartheid era, a strong and highly discretionary Department of Home Affairs had wide ranging power and latitude to formulate significant aspects of tourism, labour, and investment policies through the exercise of its migration functions. The White Paper intended to establish a professional entity which operates on the basis of simple and objective criteria which are limited to the issuance of permits for foreign workers, foreign tourists, foreign investors and foreign businessmen and visitors.
Both the White Paper and the Bill ensure that foreign workers are employed within South Africa at the same terms and conditions applicable to our nationals. However, it is not the purpose of migration to determine what such terms and conditions may be. The request for the development of a "comprehensive policy" tabled by important role players is undoubtedly important, but remains misplaced. One of the issues raised in such context is that of the abolition of the system of compulsory deferred payment. We believe that this matter needs to be decided by the Departments of Foreign Affairs, Labour, and Trade and Industry, and ultimately by the Presidency within his leadership role in respect of the position of South Africa in the future development of the SADC. It is not a matter for the Department of Home Affairs.
Simply put, for as long as the system of compulsory deferred payment exists, a migration function needs to provide for an adequate permit, and relative controls to ensure that the relevant foreigners respect the terms and conditions of such permit. If the system of compulsory deferred payment is abolished, the migration function will need to abolish the relevant permit.
Similarly, it is not the purpose of migration to express an opinion on the possible ratification of the SADC protocol which would lead to the free circulation of people within the SADC countries, with their possible entitlement to residence and the right to work within the SADC territory. This is a fundamental decision for South Africa which needs to be taken internationally at the highest political level. It must be driven by the Presidency and the Department of Foreign Affairs and would involve a large number of line functions which could be impacted by such historical decisions such as the Departments of Labour, Trade and Industry, Welfare, Education, Housing, Safety and Security and others.
It is improper to try to place the debate on the SADC protocol within the discussions relating to the necessary and urgent formulation of a new and better system of migration control. Both the White Paper and the Bill seek to reach beneath the level at which policy formulation takes place in respect of matters which may be impacted by the presence of foreigners within South Africa. Obviously a perfect separation is not possible. For instance, provision is made that student visas be made available for foreigners who are enrolled in institutions of learning within the Republic. However, the criteria for their admission in public institutions of learning will need to be determined by the Department of Education, which will establish whether foreign students should have the same access as our nationals, or a quota should be reserved for them.
This decision will be made within the management of the educational resources of our country. However, the migration function may assist in recovering the value of public subsidies in the education of each foreign student if the Department of Education chooses to pursue this policy option. Therefore, both the White Paper and the Bill make provision for this eventuality. The same applies in respect of medical treatment in public facilities, thereby registering that South Africa is becoming an increasingly more attractive destination for foreigners seeking hospital services.
Having sketched what the function of migration control is not, one needs to focus on what migration control is all about. The main tasks of migration control are threefold. First is the issuance of permanent and temporary residence permits to foreigners who qualify for them. Second, is the detection and removal of foreigners who are illegally within the Republic. Incidental to this latter function are the tasks of migration relating to deterring the phenomenon of illegal immigration, investigating its general causes as well as specific cases. Thirdly, migration must deal with undesirable social phenomena associated with the presence of foreigners in the country, amongst which is the prevention and redress of xenophobia. Additional social problems to be dealt with relate to the cultural adjustment of foreigners and interim services they may require in the process of their relocation.
These three tasks are outlined in the White Paper and the Bill. In the past, the great majority of resources and administrative attention of migration control has been focussed on the first task, namely the processing of permits in respect of those foreigners who are within the system. Little resources have been available for the second task and illegal foreigners have been dealt with only when identified as a consequence of their breaching their conditions of permit or as an incident of their arrest by the police. Little capacity existed for actual law enforcement, especially in respect of the large number of illegal foreigners who never become part of the system because they cross into South Africa at places other than points of entry and never become registered within the system through which permits are issued.
Finally, no specific capacity or resources have been employed in respect of the third task, which is that of dealing with the social problems associated with illegal aliens, of which xenophobia is only one. Therefore, the White Paper points out that the nature of migration control must change and assume different tasks. To this end, the White Paper takes cognisance that migration control is presently underfunded and is likely to remain underfunded in the future. Throughout the world, it is noted that scarce budgetary resources are allocated to migration control. Therefore, the White Paper seeks a more rational allocation of available resources amongst the aforesaid tasks.
The White Paper also seeks to apply the principle of service delivery within the field of migration, identifying three classes of recipients of its services, namely the foreigners to whom permits must be issued, the nationals who wish permits to be issued to such foreigners, such as their employers, family members, business associates or tourist establishments, and, as a third category, the public at large which benefits from the presence of foreigners within the country and wishes to regulate the presence of illegal foreigners. Therefore, the role of migration is to issue permits as quickly, efficiently and objectively as possible and deal with those who do not respect the conditions of permits.
Accordingly, a new migration function will simplify the issuance of permits based on objective and simple criteria. The notion is that of having an objective system of permit issuance which can be administered without the need for time consuming discretional assessments and consultations with other organs of the State or entities, and can be performed by the officials concerned without a high degree of specialisation and training. We are aiming at developing a system in which the officials can review an application from the viewpoint of completeness, and issue a permit on the basis of the documentation on their file. Simply put, the official will need to check whether all the documents required by law and regulations are part of the application, and whether their contents fit that set forth in standard forms.
Therefore, the application review process will be fast, objective and predictable, thereby achieving the sought after improvement of service delivery. Moreover, this approach will free administrative capacity presently locked into the processing of permit applications. This additional capacity will be employed for the other two tasks of migration control. This approach also sets the backdrop of an important reform of migration control contemplated in both the White Paper and the Bill. Having simplified permit procedures, it becomes possible to organise migration control in a more decentralised fashion. This is essential to enable migration control to cope with the increasing demands of the future.
The success of South Africa will reverberate dramatically on migration control in terms of multiplied work permit applications, massive influx of tourists and businessmen and demands from people seeking to settle in South Africa permanently. This additional work could not be processed within the present structures. Therefore, the migration function will primarily be exercised by regional offices. The head office in Pretoria will be the centre where the activities of regional offices will be coordinated, training will take place and polices will be developed. At present a great deal of head office capacity is employed in the processing of permits. In the future, head office will not be processing permits, but will review how permits are processed, develop the relevant policies and manage the entire system of migration.
Similarly, enforcement activities will take place at the regional level and will be equally coordinated from a viewpoint of management, training and supervision from the head office. Regional offices will be both within the Republic and abroad. Within their context, it will be possible to issue permits in foreign regional offices such as those presently located in London and Berlin. Once the system functions properly, is effectively managed and supervised, it will also become feasible to remove some of the administrative measures which were put in place to address present administrative shortfalls, such as the requirement that permit applications be lodged from outside the country and their applicants remain abroad waiting for the outcome of their application. The White Paper and the Bill make it possible to adjust status from within the Republic, which means that a foreigner who is legally within the Republic may apply for a different permit. A tourist may, for instance, apply for a work permit.
The decentralisation at regional level also serves the purpose of ensuring greater accountability for those who effectively make decisions on single cases, so that they may be required to answer for them if they are erroneous and they become the immediate respondents of both administrative and legal challenges brought against their decisions. This applies both to the issuance of permits as well as action taken in pursuance of law enforcement such as deportations. The White Paper places a new emphasis on the task of enforcing immigration laws. Within the debate there has been a great deal of misunderstanding of this aspect of the White Paper possibly due to the fact that, while the White Paper speaks extensively about enforcement at community level, on a few occasions it uses the unfortunate linguistic shortcut of "community enforcement".
By no stretch of the imagination has it ever been suggested that communities would be tasked with the responsibility of enforcing immigration laws or be in any way involved in such activities. The notion is that of having Immigration Officers actually working within communities, moving capacity out of offices and away from paperwork to place it at grassroots level. We need to visualise the future of migration and the presence of foreigners within South Africa within a 21st century characterised by an enormous ease of movement of people between countries and large circulations of foreigners for purposes which one can no longer classify on the basis of rigid categories.
A country such as South Africa will attract a large number of foreigners who will often be within the Republic for mixed purposes, such as tourism and business, or tourism and research, or sabbaticals, or just to retire as pensioners. The future will increase the number of foreigners within communities, which will become increasingly more cosmopolitan. With this reality in mind, the White Paper focuses not so much on the foreigners themselves, but rather on their activities within the Republic. The focus of law enforcement is moved away from the foreigners and placed on their activities.
Therefore, it is not the presence of foreigners per se which will ever form the object of investigation and law enforcement by migration, because it would be impossible to operate on that basis. There is no issue of stopping people who are expected to be foreigners in the street. It may happen on occasion and, surely, migration must have the power to do so, because it is necessary to the exercise of its functions where the real focus is placed. But the future of law enforcement places the focus of enforcement elsewhere. The activities of foreigners are monitored where it counts, namely in workplaces, learning institutions and at the interface between government and its citizenry.
Also, the revamped Department of Home Affairs will need to ensure that, in a climate where the presence of foreigners in South Africa will be less regulated, the activities of foreigners can be adequately regulated and the regulations enforced. Therefore, migration needs to develop the capacity to routinely inspect workplaces as well as communities. In doing so, it may request communities to cooperate with its activities as much as any other law enforcement agency would require the public to provide information. These efforts are balanced by the separate task which both the White Paper and the Bill require migration to undertake, which is that of educating the public and preventing any instance of xenophobia.
Another important aspect of the new system of migration control is the need of registering the passage into a pervasive human rights culture shaped by one of the most democratic constitutions in the world which applies equally to nationals and foreigners within the Republic. One of the main transformations of migration in the future is centred around the requirement of motivating the decisions taken, and providing a full opportunity for judicial review during which the rights and the liberty of those affected, especially foreigners, are respected, on the basis of a judicialised process which, inter alia, relies on warrants.
This is an enormous transformation from the present situation and puts migration control in a completely new dimension which requires an enormous amount of additional resources. Simply put, compliance with the requirements of advanced human rights protection requires greater capacity, more resources and more training. It would be almost impossible and hardly conceivable for this process to take place through a general system of courts.
For this reason, the White Paper proposes and the Bill provides for the establishment of Immigration Courts which, only for descriptive purposes, one might wish to equate to traffic courts, insofar as immigration officials will be specially trained to appear and present their cases, thereby minimising the need for prosecution. Judges will be specialised, and one would expect cases to be heard in a fast and routine fashion, while providing the full measure of competent judicial attention. These courts, operating at the Magistrate’s Court level could indeed be Magistrate’s Courts, operating on certain days of the week, provided that the relevant magistrate has undertaken a qualifying programme of training.
Contrary to some criticism expressed against the notion of Immigration Courts, separate courts do not duplicate the required judicial and administrative capacity which, in the final analysis is dictated by the number of cases to be heard, courtroom space required, and work hours on the side of judges and prosecutors. These factors remain constant and are not duplicated, while specialisation reduces the extent to which these factors come into the equation.
The final aspect of law enforcement and migration relates to border control. Also in this respect, there has been some misunderstanding in the reading of the White Paper, for there is no suggestion that border control should in any way be lessened. On the contrary, the White Paper suggests that it be tightened through the actions of a specialised force under the control of the Immigration Service, which after the Cabinet amendments to the Bill is now the Department of Home Affairs. The White Paper merely states that border control cannot be relied on as the solution to the problem of illegal foreigners in the country and that, by itself, it will remain ineffective. However, it cannot be neglected.
The White Paper reflects the notion that border control must dramatically change. Nowadays, borders are no longer controlled to repel an invading army, and the main concern of border control is about preventing cross border illegal activities, ensuring the payment of tariff duties on entering goods, and regulating the access of foreigners for purposes of migration control. These are not functions which can be performed by the defence forces, nor do they require the full range investigative and policing capacity of the police service, which are the two security services presently mandated to perform border control. Therefore, future border control will need to rely on specialised investigative capacity which justifies the policies set out in the White Paper and the Bill.
One of the more widely debated issues of migration control relates to work permits. In this respect, two relevant policy considerations have emerged in the debate. The first is that which suggests that government should not make work permits too readily available, for fear that the easy availability of skilled and qualified foreign labour may reduce the momentum and necessity in respect of the training of nationals, especially as far as our industry as a whole is concerned.
The other relevant policy consideration centres around the need of providing our economy with the skills and qualifications it needs to grow. This consideration registers the fact that all countries are competing for skilled people. For instance, Germany has launched a programme to acquire tens of thousands of foreign computer experts who will be allowed to work in that country in an environment in which conditions for work permits and permanent residence have been greatly relaxed. Therefore, in this context, South Africa competes with some of the most advanced countries, without being able to provide many of the benefits such countries offer, which may require our making it even easier for foreigners to receive work permits.
A further consideration is that of compensating the brain drain to which South Africa is subject with a brain gain, so as to enrich South Africa’s human resource pool. The drafters of the White Paper have considered a broad variety of options relating to these considerations, engaging in a broad analysis of comparative experiences, the several aspects of which could obviously not be set out extensively in the few pages in which a policy document must be contained. In the end, the White Paper created a necessary tie between work permits and the training of our nationals through the establishment of a training levy.
In order to fully understand the value of this innovative proposal, one may need to consider its alternatives especially in the light of some of the criticism raised after the publication of the White Paper and in the following period of public comments. The key question that one needs to ask is how one addresses the type of foreigners which South Africa as a whole may like, need, or prefer to have working in South Africa. The White Paper and the Bill develop new and innovative solutions to foster economic growth and satisfy the needs that our businesses may have for the acquisition of foreign human capital and skills. From a business viewpoint there are two major facets to the relevance of migration control. The first relates to the acquisition of foreign workers within an established business in South Africa. The second relates to the establishment of a foreign business in South Africa, and includes intra-company transfers, key personnel and investor’s permits. The difficulty is that, in reality, these two categories are on a continuum which blurs the differentiating lines.
Similarly, foreigners may come to South Africa to either work or conduct business, and while there may be clarity at the two extremes of this spectrum of employees and businessmen, there are many grey areas in between. The most difficult aspect of reducing the simple reality of people coming from abroad to conduct productive activities in South Africa into legal classifications and differentiations was raised by the issue of skills. It took three years since 1995, when the public debate on international migration first began, to bring about policy consensus that we need to open up the country to the skills our economy needs, as stated by the President during his State of the Nation address of this year.
Years ago there were some voices suggesting that we should avoid satisfying our country’s need for additional skills by resorting to foreigners, so as to avoid reducing the incentive that our employers should have to train South Africans. The emphasis was exclusively on brain train rather than brain gain. It was then realised that a country grows also because of the human capital it is able to import, and the White Paper developed a mechanism to maintain a policy connection between brain train and brain gain. However, stating that we need to let into the country the skilled people we need is easy to make from a policy viewpoint, but difficult to implement in practice. Someone somehow needs to determine who is skilled, what skills we need and whether such skills are indeed needed.
There was a strong temptation that government should do exactly that; that we should classify all the possible skills into various groups or categories and determine how many of each group we need at any given time and for each sector of industry. Those who wish to employ foreigners would need to apply against such skills and needs auditing. This system would leave unsolved the issue of whether a foreigner is actually needed in a specific industry, even when his skills belong to a category for which the generic need was assessed.
Therefore, it was suggested that each application be accompanied by a labour certification which showed that no South African was ready, willing and able to take the position being offered after such position had been duly advertised. This mechanism would only prove that the need for such foreigner existed at the time of his employment and, therefore, it would become reasonable that this labour certification be repeated when the work permit requires extension, and that such work permit be issued for a short period of time.
This is the skills auditing system against which work permits would be issued. This possible alternative gives the full measure of the difficulties the White Paper sought to overcome in developing something better. Such system would have been even more complex, discretionary, uncertain and time and effort consuming than the one presently in use in terms of the Aliens Control Act. It would have required a huge government bureaucracy to be implemented. Each business would have been required to list the skills it presently has and those which it expects to need in the future. This sophisticated guess work would then be assessed through a process of policy review which would have balanced the needs expressed by the industry with the interests of the State not to fulfil such needs, so that the training of South Africans could be promoted. Such system could not work in our present context, and with the present and future needs of our economy.
The fact is that, in the real world we live in, it is impossible to classify skills and match them with qualifications. Government can only read skills through qualifications and determine that if someone has an engineering degree, he has the skills of an engineer. We are ill-equipped to assess experience, training and curricula vitae. In the present market place, qualifications no longer match skills and skills no longer match positions. Engineers may make good managers. Moreover, the link between skills and qualifications has been irreparably broken. For instance, South Africa desperately needs computer specialists such as web designers, web site managers and developers and programmers, most of whom have precious skills reflected in no documentable qualification such as a certificate or diploma.
In the end, the employer is the best qualified to determine whether an employee has the skills and qualifications required to perform certain tasks. Obviously this statement prescinds from the need of ensuring that those performing any given task have qualifications which are certified by our Qualification Authority as valid to perform such task, as in the case of medical doctors or engineers. The legal requirements relating to the exercise of any given activity or profession remain unaltered.
A final problem when dealing with skills is how to determine how much skill a person needs to have to be the type of person we need in our country. There might be agreement that a brain surgeon is sufficiently skilled, and yet we need people who can operate a certain type of water pump or tractor. Conversely, we may not need trained astronauts, as we have no space programme. There are strong segments of industry which also suggest that we need entrepreneurial skills and this seems to be supported by the large number of successful small and micro businesses commenced in our country by foreigners, many of whom are not legal yet may be providing an appreciable contribution in macroeconomic terms. Government cannot determine how much skill is enough to cross the threshold of needed skills.
The new system of migration control envisaged in the new Immigration Bill will rely on employers to determine whether any given foreigner is required for their business. Having crossed such important policy threshold, it became imperative that we maintain a connection with and satisfy two other important and possibly conflicting policies. The first is that of ensuring that government maintains control of the process. Relying exclusively on an employer’s statement that the foreigner is needed does not satisfy such a requirement, nor can government be expected to conduct an investigation in respect of the accuracy of each statement so rendered, which would lead us back to cumbersome, discretionary and lengthy procedures. The second policy consideration has always been that of maintaining a connection between the employment of foreigners and the training of our South Africans.
For this reason, we developed the mechanism of a licensing fee for foreigners as the only mechanism required to determine whether a foreigner has skills which are indeed needed in any given business. The notion is that if someone is willing to pay a higher premium to employ a foreigner than he would to employ a South African, then that foreigner is needed. This mechanism also avoids having to determine the length for which a permit should be issued, because obviously a person is needed for as long as one is willing to pay such premium. If at any given time South Africans become available to fill the position, it would stand to reason that an employer would shift to using them. Moreover, this system maintains a policy tie between brain gain and brain train which is entrenched in our debate. In fact, it is understood that this licensing fee will be directed to the training fund already established by the Department of Labour to train South Africans.
From a practical viewpoint, an employer will only need to pay this periodic licensing fee, which is an additional return, and certify that a foreigner works at terms and conditions which are not inferior to those applicable to a South African. This latter certification can be conducted on a routine basis by the employer’s accountant, indicating that the foreigner is not paid less than a South African in the same workplace or in a comparable one. When we introduced this system, the business community raised a number of concerns to which the Minister has been sensitive and which led to additional corrections being made and guarantees put in place. In the end, there have been many exceptions that a licensing fee.
Just to mention only a few of such exceptions, one may point out that the licensing fee will not apply in respect of corporate permits, which are those permits which can be negotiated by any large company or organisation directly with the Department enabling them to issue a certain pre-agreed number of permits directly from their human resources offices. This is a unique system which will add enormous flexibility to satisfying the needs of South African industry and foreign investors alike. This system also enables a corporate permit holder to shift work permits between different foreigners without having to receive approval from the Department. Obviously work permits can only be issued once the Department has certified that each application meets all the relevant requirements, including police clearance and other additional information which is part of the constituting elements which our regulations will prescribe for any and all applications.
The licensing fee will also not apply to intra-company transfers, work permits for people of exceptional skills and qualifications, in respect of people with certain skills within a class which government may determine from time to time and in respect of the renewal of existing permits. It will also not apply either in respect of foreign investments or entire segments of industry when so requested by the Departments of Trade and Industry or Minerals and Energy. The latter case is intended to address marginal and highly labour intensive industry which may be relying on foreign labour for their survival, such as certain segments of our mining industry. Many of these exceptions were the result of negotiations held in NEDLAC with social partners.
Under the new system of migration control it will be possible to obtain work permits in an expedited fashion because our Department will no longer need to process the type of controls and conduct the type of evaluations which are now delaying the issuance of permits and which have prompted a certain degree of centralisation.
Finally, a last important aspect of the new system of migration control to be mentioned is the involvement of stakeholders in the actual definition of the details of the system. The actual features of the system will, to a great extent, depend on the regulations. For instance, it will be the regulations which will determine the amount of the licensing fee and obviously it will make a difference whether such licensing fee is higher or lower, or is uniform across the board rather than being differentiated for each category of industry, possibly across the divides of the Sectoral Education and Training Authorities. Similarly, the entire system of investors permits will vary substantially on the amount of prescribed investment which qualifies for an investor permit.
The White Paper and the draft Bill have made provision for these critical decisions to be made by an Immigration Board in which both government and stakeholders of civil society would be represented. In terms of the draft Bill, Government would have control of such a Board, but the inputs of civil society within it would have been powerful. During the process of review of the draft Bill by Cabinet it was then decided that these critical decisions need to remain within the prerogative of the Minister and that the Immigration Board, rather than having a decision making power, would only serve in an advisory capacity. However, The Bill preserves the guarantee that the regulations can be stricken down by a court of law when they are found to be arbitrary and capricious in respect of the inputs received from the public and stakeholders.
The President has expressed the hope that Parliament may process the Immigration Bill before the end of this year, which is reflected in the present Parliamentary calendar. The Department remains committed to provide any assistance to Parliament in the processing of the Bill.
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