White Paper on International Migration: input by Ministry

Home Affairs

03 October 2000
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HOME AFFAIRS PORTFOLIO COMMITTEE
3 October 2000
WHITE PAPER ON INTERNATIONAL MIGRATION: INPUT BY MINISTRY

Chairperson : Mr A Mokoena

Relevant documents:
White Paper on International Migration
Remarks by Minister Buthelezi on the white Paper of International Migration (see Appendix 1)
Outline of the Presentation of the Department on the White Paper of International Migration (see Appendix 2)

SUMMARY
The Minister, his Advisor and the Deputy Director General commented on the White Paper on International Migration. The overriding message was that there is an urgent need for reform in this area in order to make it easier for foreigners to enter South Africa legitimately, but take a harder approach on those who are entering and staying in South Africa illegally.

Although issuing of permits will be simplified, it is proposed that the employer pay a licensing fee as one of the requirements for a work permit to be granted. After discussions with trade unions, it was agreed that licensing fees would be connected to a training fund. In effect foreigners with permits would contribute financially towards the training of South African employees.

The liberal nature of the White Paper, particularly its position on foreign spouses, was emphasised.

MINUTES
Introductory Comment by Minister Mangosuthu Buthelezi
The Minister emphasised the following points in his introductory remarks :
· At present the Aliens Control Act is not consonant with South Africa's Constitution;
· As a policy document, the White Paper on International Migration provides only a conceptual framework and general direction for other legislation in this area;
· The process of drafting the White Paper was coupled with a concerted effort to consult with key stakeholders at each step of the way;
· There is a need for urgent reform in this area.

Presentation by Dr Ambrosini on the White Paper
Present Situation
Dr Ambrosini, Advisor to the Minister, emphasised the following :
· The 1991 Aliens Control Act does not specify requirements nor procedures for foreigners to acquire different types of permits in South Africa; neither would an investigation of the Control Code regulations be exhaustive in this regard;
· Legislation that may originally be presented by the Home Affairs department with respect to migration policy inevitably works with machinery from a number of other departments;
There is an urgent need for reform in this area, particularly restructuring which would make it easier for foreigners to enter South Africa legitimately, but take a harder approach on those who are entering/staying in South Africa illegally i.e. there is a need to restructure the current legislation so that it makes provision for effective law enforcement.

Purpose of Migration Control
Dr Ambrosini emphasised the following in this regard :
· There is a need to revise classifications, qualifying criteria, thresholds and numeric limitations as they currently exist in South Africa, for the purpose of migration control;
· This should be done through the establishment of a board/committee that will provide the formal space and venue for stakeholders such as trade unions and businesses to revise policy and give definition to regulating guidelines;
· The executive summary of the White Paper had made reference to community participation in monitoring permits and the Committee chairperson had made reference to the community's unwillingness to accept responsibility for the investigation of work permits. However, this was an insufficient comment since the community's reluctance was based on valid pragmatic considerations which still required attention in the appropriate forum, i.e. the creation of a board as mentioned above;
· Enforcing the White Paper will require co-operation from various institutions and the White Paper does not go into this detail; forseeably then, there will be a need for further legislation to be drafted which will consider these details. On a point of process, the chairperson emphasised that further legislation around these details could only begin once the current White Paper had been promulgated i.e. that it was not possible to have a permanent White Paper that was constantly being amended.
· Some of the key purposes of migration control are education, information and research. Dr Ambrosini commented that although there had been no potentially xenophobic statements made by government with regards to foreigners in South Africa, the government still deals with the problem of xenophobia. For these kinds of reasons, Dr Ambrosini stressed the importance of having proper administration to deal with the tasks of education, information and research in respect of migration control.

Policy Tenets
Dr Ambrosini stressed the following tenets of the proposed legislation :
· There is a need for a simple and effective procedure for the issuing of permits;
· There is a need for objective, simple and predictable requirements;
· The White Paper is advantageous because it prevents momentous decisions from being taken i.e. it allows decisions to be made which account for changes in an applicant's circumstances in the future;
· A licensing fee is proposed i.e. an employer must pay a licensing fee as one of the requirements for the permit to be granted; this would establish that an employer does want the applicant as an employee because by definition to obtain a South African employee would be cheaper. This licensing fee could potentially be amended perspectively after a five year period. Amending the licensing fee could also be one of the tasks of the proposed board.

Mr Waters (DP) later queried the nature of the proposed licensing fee. Dr Ambrosini indicated that the licensing fee would most likely be a percentage of the employees salary and would most likely be collected by the South African Revenue Service, but that these details would have to be arranged when establishing the necessary regulations.

Dr Ambrosini stated that discussions held with various trade union stakeholders indicated that trade unions were agreeable to the implementation of licensing fees provided the fees were connected to a training fund. This would mean that foreigners with permits would in effect contribute financially towards the training of South African employees.
· The Department of Home Affairs must act as a "gate keeper" with regards to the granting of permits. This means that the task of Home Affairs is to establish a policy framework which will represent decisions that are made by different line functions. In effect, different departments will be responsible for their own decisions with regards to admittance criteria, but once the admittance criteria has been met, Home Affairs will issue the applicant with a permit. This means that the Departments of Labour, Trade & Industry, Health, Education and Tourism (amongst others) will have to determine their own admittance criteria. In essence the Department of Home Affairs will act as controllers rather than regulators.
· Dr Ambrosini recommended that the Department employ an auditor who will be required to go through each of the permit holders files on a regular basis ( eg bi-annually) and ensure that employers are updating the information required for the issuance of permits.
· Dr Ambrosini pointed out that through the White Paper, the Department of Home Affairs was creating an incentive to train South Africans, whilst not directly involving itself in training i.e. the department was acting as a conduit.

Critical Issues
Dr Ambrosini indicated numerous critical issues with regards to the White Paper, among those mentioned were the following :
· In terms of process, Dr Ambrosini indicated the need to establish a board whose task it will be to give definition to the policy outlined in the White Paper and the procedures to be followed in doing so.
· Dr Ambrosini emphasised the liberal nature of the White paper and that this was particularly evidenced with regards to the White Papers position on "Spouses and Marriages of Convenience". With regard to the latter, the White Paper adopts a two tiered approach. In the first place, the department must be satisfied that the marriage is not a marriage of convenience, in which case the department will grant the permit. Secondly, if there is doubt then the burden shifts onto the individual applicant to show that the marriage is not one of convenience. If the Department is not satisfied that the marriage is not one of convenience, then the Department will not grant the permit and will not provide reasons therefore. In any event, the Department may grant an intermediary permit which will automatically expire if the marriage does not subsist for the requisite period (this may be two or three years).
· Dr Ambrosini stressed the need to elevate current immigration standards into a system that was consistent with human rights norms and conventions, judicial protection and fair administrative practices.
· Furthermore, Dr Ambrosini stated that elevating the standards of the current immigration control system would necessarily entail considerable costs. Decisions as to court venues, procedures and alike would need to be taken by the Department of Justice.

Comments by Deputy Director General on the White Paper
Mr Ivan Lambinon stressed the following :
· The matter of legislative reform with regards to migration policy is an extremely urgent one; Mr Lambinon indicated that the Department could not practically cope with its current workload;
· Abuse of migration policy also strongly indicated the need for reform in this area;
· Mr Lambinon highlighted that these policy issues are intrinsically tied to governments policy around refugees and this further contributes to the urgency of the matter;
· The White Paper has received a great deal of positive feedback internationally;
· The drafters have had extensive negotiation with all government departments and that all government departments now agree with the basic proposal.

General Comments
·
A pervasive issue throughout the presentations by Dr Ambrosini and Mr Lambinon was the extent of dialogue between South Africa and other SADC members with regards to the White Paper. The Minister and others indicated that these potential reforms had been discussed to some extent with SADC members. The Chairperson indicated that the process of reforming South Africa's migration policy so that it could be consonant with generally accepted human rights norms and South Africa's Constitution should not be "hijacked" by the consideration of Conventions that have not yet been accepted by Parliament as binding on South African policy in these areas.
· As a point of order the Chairperson indicated that he would insist on a response from the Home Affairs Director General as to his lack of presence at the meeting.

 

Appendix 1:
HOME AFFAIRS PORTFOLIO COMMITTEE
PRESENTATION OF THE DEPARTMENT OF HOME AFFAIRS
ON THE WHITE PAPER ON INTERNATIONAL MIGRATION
REMARKS BY MANGOSUTHU BUTHELEZI, MP
MINISTER OF HOME AFFAIRS
Cape Town: October 3, 2000

The Chairman, Mr AS Mokoena, and members of the Committee:

I thought it opportune to premise the presentation of my Department on the White Paper on International Migration with a few introductory remarks. The issue of migration control is a complex and multifaceted one. I know that the Portfolio Committee has engaged in a meritorious process of public consultation to increase its knowledge and understanding of the relevant issues. I must praise the Portfolio Committee and its Chairman for these efforts.

The White Paper was approved by Cabinet after detailed deliberations on March 31, 1999. We then delayed its immediate implementation, awaiting developments following the then forthcoming elections. When I found myself to be the Minister of Home Affairs once again in August 1999,1 gave new impulse to the finalisation of this process.. In fact, we urgently need the legislative reform of migration control. For this reason, we commenced a new process of consultation to guide us in the drafting of the legislation implementing the White Paper.

As a policy document, the White Paper creates only a conceptual framework and a general direction, the significance of which becomes clear only through the relevant implementing legislative options. This is particularly true in respect of permits categories and administrative procedures. Accordingly, we mailed the White Paper to all other departments and requested public comments. It was my intention to make sure that during this stage of the process, this Portfolio Committee remained on board. For this reason, in October 1999 I addressed the Portfolio Committee urging it to provide its own inputs and comments on the White Paper together with the rest of the public.

If we compare this process of policy formulation with the one followed by our government in many other fields, it appears clear that we have moved slower, more carefully and with more stages of public participation than any other process. We had several stages of consultation during the Green Paper process and before the finalisation of the White Paper, and we solicited additional comments after the White Paper was finalised. This was done because we took the unusual step of allowing a significant hiatus of time between the approval of the White Paper and the drafting of its implementing legislation. As you will know, most of the other processes of policy formulation of our government have seen a draft Bill accompanying the White Paper or being published immediately thereafter.

On this occasion, my Department will provide a presentation on the White Paper as a general policy framework. I hope that during this presentation the multifaceted issues underlying this matter can be illustrated in their salient details. In the past four years of policy formulation, our Department has received most of the comments that the Portfolio Committee has heard during its own investigations. We have interacted with many of the stakeholders and workshopped most of the relevant issues. During this process, we gained a wealth of knowledge and information which we hope that we may share with the Portfolio Committee on this occasion. In fact, it seems that none of the submissions made to the Portfolio Committee are new and they have all been taken into account in the development of our policies and its implementing draft legislation.

At times we had to agree to disagree with some of the relevant stakeholders and, on this occasion, we wish to offer the opportunity to this Committee to share and appreciate the reasons which led us to such a position. It must be accepted that, in a field of conflicting interests and views such as migration control, it is impossible to please everyone. We also had to formulate solutions which not only meet the needs and aspirations of our clients, including the public interest, but we also had to design administrative structures and procedures capable of delivering results.

We did not want to draft policy and legislation which could not translate into tangible delivery and, for this reason, since the outset we sought to bring about not only a comprehensive legislative reform of migration control, but also a reform of the administrative structures serving the function. It has been an ambitious project which we have pursued in earnest each step of the way, consulting and negotiating with anyone with a stake in the matter or with a contribution to make. We looked at the experiences of other countries, but we did not seek to replicate what they were doing but rather to create a genuine South African solution in which our country can take pride.

We are not following old trends, but we stand to create the new trends of migration control in the 21st century. Our new policy and draft legislation has received international interest and my Department has even been requested to make presentations to governments of three different continents which are also battling to 'find new solutions to present migration pressures and future challenges. We are pleased that today we have the opportunity of presenting the policy and the solutions it embodies to this Committee, and we hope that this dialogue may enrich the process which shall eventually lead to the adoption of a new legislative and administrative system of migration control. I am sure that this initial stage of deliberation will enable the Portfolio Committee to provide a fantastic contribution to this process once the White Paper is formally tabled before it along with its implementing draft legislation.

The present situation is no longer sustainable and must be reformed urgently. By working together, we can all develop a product which will succeed in serving our country's needs. I wish to assure this Committee that I remain committed to take on board any substantive and well thought out suggestions, improvements or contributions which this Committee or any of its members may wish to make to this ongoing process.

Appendix 2:
OUTLINE OF THE PRESENTATION OF THE DEPARTMENT OF HOME AFFAIRS TO THE PORTFOLIO COMMITTEE OF HOME AFFAIRS
ON THE WHITE PAPER ON INTERNATIONAL MIGRATION
Cape Town October 3, 2000

Present situation
- Lack of objective criteria: ADA, Regs. Consular Manual, administrative practices.
- interdepartmental consultation and ad hoc policy formulation
- foreigners abusing the process and DHA's response to it
- law enforcement, policy formulation and need for reconstructing the function
- urgency of this reform after 4 years of policy formulation
- migration control: one of the fastest growing functions

Purpose of migration control
- policy determination who may enter the Republic
* classifications
* qualifying criteria and thresholds
* numeric limitations
- issuance of permits and customer service
- law enforcement
- education, information and research

Policy tenets
- expediting permit issuance
- objective, simple and predicable requirements
- utilize scarce available capacity to increase efficiency and create effective law enforcement
- easier access but greater control
- decentralized implementation and effective centralized management

Critical issues
- position of the DHA and the SAIS in respect of policy formulation, the SADC draft protocol and the scope of the WP, e.g., in respect of labor, education, and health policies
- the diatribe with the Department of Labor over compulsory deferred pay and international labor procurement
- the "need" determination: licencing fee versus labor certification, quotas, point systems in light of present-day fluidity of the qualification-skills-need relation: a liberal approach
- applicability of labor standards and complementarity with training programs
- multiplication of educational TRPs
- policy formulation: the function of the Board
- law enforcement at community level
- spouses and marriages of convenience
- gender and affirmative action: immigration control as a meta-policy
- the tools to fight off xenophobia: education, law enforcement, proper administration
- interdepartmental coordination and line function integration: judicial functions, border control and law enforcement ranging from book inspection to apprehension for deportation
- relation between present-day civic obligation and those in the new policy
- human rights culture, administrative appeals, warrants and judicial review
- on-going policy formulation based on interdepartmental coordination and public participation

The comments on the WP
- different stages of taking comments "on board": WP --general ideas, law --criteria, reg -- details
- comments received by the DHA and during the public hearing
- erroneous assumptions, reflection on present problems, lack of information

Process
- the more than usual opportunities for public inputs and stages of reflection
- Nedlac process
- the second white paper process to support and frame the regulations
- next steps

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