This submission is an elaboration of the submission to the Department on the Draft White Paper. In some respects, the White Paper attempts to address our concerns but in many respects, as shall be argued in the submission, the White Paper does not advance the Green Paper nor does it take forward our proposals. The Task Team established to draft the White Paper started from the premise that they would not be bound by the findings, recommendations and policies set forth in the Green Paper, (White Paper p.7). Despite this premise it is important that on a case by case basis an explanation is provided if Green Paper proposals are not taken forward. For instance, the Green Paper proposed that the system of deferred pay must be scrapped (the Green Paper, p.23 at 2.4.4.6). However, no motivation is given in the White Paper for not addressing this issue.

The are many positive elements that we support in the White Paper including emphasis on enforcement of labour legislation (however sometimes contradicted in the White Paper), the separation of permits, including informal trader permits, the terms of entry and conditions of stay are supported (however, the credit card proposal needs further elaboration); and so forth. However COSATU has concerns with aspects of the White Paper which will be raised in the submission.

The submission first deals with COSATU’s approach to migration policy, particularly the principle that should underpin the policy framework. This is followed by an analysis of the White Paper’s philosophical orientation. The interaction of migration policy and the labour market then follows. This is followed by the discussion of regional development and enforcement mechanisms.

The development of immigration policy is an important step in overhauling the archaic system inherited from apartheid. As indicated in the Green Paper (p.19) the challenge for South Africa is "to transform a racially-motivated immigration/migration system into a non-racial and rational policy response to the objective needs of our country. Such a response must be right-regarding, consistent with the Constitution, and sensitive to the regional and global context in which we seek to promote growth and domestic development." This means reversing the racially determined policy and formulation of a policy that factor in the Bill of Rights contained in the Constitution.

As pointed out in the submission on the Green Paper, Immigration Policy must be guided by a set of principles. From our perspective it must be guided by the following principles:

Principle 1: Government migration policy must not compromise the interests of workers in Southern Africa. Migrant workers must have the right to join trade unions without any hindrance; migrant workers must be able to transfer their wages and benefits to their home countries without restriction; and insurance, pensions and provident fund payments must be guaranteed even after migrant workers return to their countries of origin. Southern African states must agree to the effective enforcement of labour standards by governments throughout the region.

Principle 2: The South African government - through a summit of Southern African governments and trade unions - should seek to develop migration policy as part of a broader regional economic development plan. Southern Africa’s history of colonisation and apartheid destabilisation means that the region has inherited a legacy of poverty, insecurity and skewed development. The development of an appropriate migration policy requires that we put in place a strategy informed by a long term vision of how our region is to overcome its problems and improve the living conditions of all who live in it.

Principle 3: Through effective legal guarantees of equal wages and working conditions for South African and migrant labour, migration policy must avoid a situation where the employment of foreign workers leads to a de fact erosion of labour standards and a deterioration of the conditions of all workers in South Africa. Any potential for the entrenchment of a two-tier labour market – made of legal South African workers and ‘illegal’ foreign workers – must be explicitly undermined.

Principle 4: There should be fair and proper control of entry of migrant workers into South Africa, including the drawing of clear distinctions between traders, tourists, migrant workers, job seekers, students, etc. Migration policy must ensure humane treatment - informed by South Africa’s constitutional commitment to human rights - and must promote the formalisation of migrant workers coming to South Africa from other countries.

Principle 5: In the short to medium term, an agreed number of migrants from neighbouring SADC countries should be allowed access to the South African labour market and heavy penalties should be imposed on employers who employ illegal migrants. This should be reviewed on an ongoing basis so that, in the longer term, freedom of movement, residence and employment through-out the Southern African region can be achieved.

Principle 6: Immigration policies aimed at attracting skilled workers must not jeopardise the priority of developing skills in the South African workforce and we should not compromise the Department of Labour’s programme for improved skills training on the basis that attempts are being made to attract skilled labour from other countries.

Some of these principles are addressed in the White Paper, albeit in an uneven and at times contradictory fashion. For example, the White Paper endorses the view that all workers should enjoy similar sets of right regardless of their country of origin. However, as shall be pointed out below, there are statements in the White Paper which can be interpreted to mean that the drafters leave the door open for foreign workers to be employed at lower conditions of employment relative to their South African counterparts. Further, the White Paper evades some of the issues addressed above, such as compulsory deferred pay. These issues will be further addressed under the section Immigration Policy and the Labour Market.

Another important principle for COSATU is that migration is a cross-sectoral issue and must be co-ordinated within government. This is consistent with the underlying vision of the Green Paper. The Department of Home Affairs is nonetheless the primary government institution acting in the immigration area.

• The White Paper, similar to the Green Paper, should have a section on general principles. The principles could serve as a yardstick to measure its policy recommendations.

The White Paper's preoccupation with illegal migration results in the failure to provide a coherent immigration policy and in certain respects the avoidance of issues. Underlying this is an assumption that South Africa has been flooded by 'illegal immigrants since 1994. The extent of illegal immigrants remains a controversial issue and it is important that this matter is further investigated, rather than simply repeating the unverified estimates of five million (as argued by the Human Science Research Council in 1997). Such a process will go a long way to defuse the highly charged discussion of illegal immigrants.

One practical example of the White Paper’s limitation in providing a coherent policy framework is that it does not clearly articulate how it advances the RDP or growth and development. It is our submission that a strategy directed mainly at addressing illegal migration without at the same time addressing the socio-economic context of illegal migration is not sustainable in the long-term. It will further engender paranoia, which will then make it difficult to have a rational and humane approach to illegal migration. Needless, to point out the fact that it will exacerbate xenophobia – which is increasingly gaining ground in the consciousness of many South Africans. Illegal migrants have been blamed for all manner of problems including crime and unemployment and it is important that policy re-educates people rather than fuelling these unsubstantiated claims.

It is important to acknowledge the fact that the White Paper recognises the need to address xenophobia and in that respect it cannot be accused of consciously fueling xenophobic hysteria. Nevertheless migration policy should include a conscious strategy to promote regional socio-economic development and address the causes of illegal migration in a coherent and systemic fashion. In addition, there has to be recognition of how the majority of so-called illegal migrants were the products of destabilisation by the apartheid system. It is also a well-known fact that the migrant labour system in the mines was based on a "permanent temporary status" for mine workers which itself has created a problem of illegality. It is for this reason that COSATU made a call for amnesty and the granting of permanent resident status to such miners.

The second major area of concern relates to unsubstantiated claims about the state’s capacity. For instance, privatisation of detention services is considered even before ascertaining the state’s capacity to fulfil this function (the White Paper at paragraph 11). Linked to this is the devolution of important responsibilities such as the issuing of visas to businesses under the corporate permit system. The blind faith in market forces is further implicit in statements that the market knows its needs and it should be left to it to determine their skills needs. This position contradicts one of the important functions of the Department of Labour, which has overall responsibility for labour market regulation.

Therefore, there is an assumption in the White Paper that where the state lacks capacity, this can readily be solicited from the private sector. As such, the White Paper does not interrogate whether such capacity exists in the private sector, or whether it is appropriate to build such capacity in the public sector where it is lacking. In our view, preference should be given to building the capacity of state institution, with the assistance of the private sector where appropriate. Simply privatising important functions such as detention does not address corruption nor does it contribute towards building the capacity of the state. International experience has shown that once the state’s capacity has been run down it is extremely difficult to rebuild.

Thirdly, the structure of the White Paper makes it difficult to follow. COSATU believes that the White Paper should be reorganised into concise thematic sections, for example on the labour market, education, and so forth. Each section must begin with a problem statement, a vision and a set of policy recommendation.

Further there are gaps in the White Paper; for example there is no focused discussion or policy recommendations on gender and migration. This issue is addressed eloquently in the South African Migration Project (SAMP) submission and this should be used as a basis for elaborating the strategy of dealing with gender issues.

Having said this, we acknowledge that migration policy is a complex issue, which inter alia requires balancing domestic concerns with regional and international issues. In the final analysis, the White Paper has to be judged on whether it achieve such a balanced approach.

Part five of the White Paper deals with the existing policy framework, specifically the macroeconomic policy GEAR. It is clear that the Task Team sought guidance only from the GEAR and has not reviewed a number of policies ranging from education, health and so forth. Of particular concern to COSATU is the total silence in the White Paper on the RDP, which also provides a vision on international migration. In our view, the RDP lays a foundation from which a future migration policy should be based. It is therefore essential that the White Paper give effect to the vision contained in the RDP.

The RDP, at 4.9.6 provides that "one element of regional policy, defended particularly in the call for a Southern African Social Charter by trade unions, is that minimum standards with regard to rights of workers to organise be established across the region as a whole. This will allow a process of greater integration to become one of levelling up rights and conditions of workers, rather than of levelling them down to the lowest prevailing standard."

Further at 4.9.1 the RDP provides that "in the long run, sustainable reconstruction and development in South Africa requires sustainable reconstruction and development in Southern Africa as a whole. Otherwise, the region will face continued high unemployment and underemployment, leading to labour migration and brain drain to the more industrialised areas. The democratic government must negotiate with neighbouring countries to forge an equitable and mutually beneficial programme of increasing co-operation, co-ordination and integration appropriate to the conditions of the region. In this context, the RDP must support the goals and ideals of African integration as laid out in the Lagos Plan of Action and the Abuja Declaration."

• The White Paper should give expression to the vision outlined in the RDP. In addition, it must take into account sectoral policies and their interaction with immigration/migration issues.

It is important that the White Paper gives effect to the spirit and letter of the Constitution. The emphasis on the supremacy of the Constitution and the shift to a rights-based enforcement in the White Paper should be supported. The White Paper at paragraph 2.2(p.12) recognises that "there is no constitutional basis to exclude in toto the application of Bill of Rights because of the status of a person while in South Africa, including illegal immigrants." Further it is pointed out that "the limitations clause may not be invoked to prevent a class of people, however identified, from enjoying the total use and benefits of a given constitutional right."

It is important that legislation emanating from the Constitution such as the Promotion of Access to Information Act and the Promotion of Administrative Justice Act be taken into account. These laws have a direct impact on migration policy and legislation and as part of modernising the system the principles enshrined in various pieces of legislation must be given expression in the legislation on international migration. For instance the legislation must entrench the right to a fair hearing, administrative justice and information.

Having said this, we note that the discussion of the Constitution in the White Paper is uneven and riddled with weaknesses. To understand this point, it is imperative to take into account the critique of the SAMP in this regard.

• The section on Constitutional review needs to be revisited to address the gaps and ambiguities contained in the White Paper. Specifically, the issue of socio-economic rights needs to be fleshed out in relation to the Promotion of Equality Act. There is a need for policy coherence and clarity on the interpretation of this clause.

Another important dimension to immigration policy is South Africa's international obligations. South Africa is a signatory to a number of international and regional treaties and conventions. The treaties range from UN treaties to ILO conventions. These treaties impose duties and obligations and once signed are enforceable in domestic situations. It is therefore, disappointing to note that the White Paper makes no specific reference to these international treaties and how they must be given effect to in national policy.

• The White Paper should include a section reviewing international and regional treaties and the obligations imposed on South Africa. Further, these conventions and treaties must form the core of the White Paper's strategic direction on diverse issues including labour migration.

Migration policy influences and interacts with labour market policy in a number of ways. It can affect access to skilled and other labour through the control of labour mobility. As has been amply recorded, the migration system in South Africa was meant to meet the cheap labour needs of mining and agriculture as well as the apartheid government’s desire to expand the White population. Against this background, it is important that migration and labour policy should be aligned. The operation of immigration policy and legislation should not undermine labour legislation.

The Department of Labour has spearheaded a process of labour reform aimed at transforming the apartheid labour market. One key objective was to stabilise the labour market by granting all workers a basic floor of rights. Under current labour legislation all workers irrespective of origin enjoy similar rights. This was aimed at countering the dual labour market in operation for decades in which unskilled migrant labourers were super-exploited.

The difference in orientation between the Department of Labour and Home Affairs in this regard should be taken into account. The Department of Labour seeks to protect the rights of workers while the Department of Home Affairs is interested in addressing illegal migration. The differences in approach can result in subtle differences in emphasis. Notwithstanding the nuances in both departments’ approaches, we argue that it is possible to find a common platform. In many ways this submission should be seen as an attempt to harmonise migration and labour policy in such a way that it further reinforces the transformation of the labour market.

One of the key principles guiding us is that through effective guarantees of equal wages and working conditions for South African and migrant labour, migration policy must avoid a situation where the employment of foreign workers leads to a de facto erosion of labour standards and a deterioration of the conditions of all workers in South Africa. Any potential for the entrenchment of a two-tier labour market – made of legal South African workers and ‘illegal’ foreign workers – must be explicitly undermined. Against this background, we welcome the recommendation in the White Paper that the Immigration Service and the Department of Labour should "ensure that foreigners work on the same terms as South Africans in full compliance with the law and the regulations and the applicable collective bargaining agreements." In addition, we welcome the recommendation for effective enforcement to ensure that no employer employs illegal foreigners. If employers engage illegal foreigners they will be liable to legal sanctions.

However, the White Paper contains statements that contradict this approach and may serve to create confusion. For instance at paragraph 4.4.5 it is stated that "it has been convincingly argued that from a macroeconomic viewpoint there are benefits to be gained from illegal aliens working below the standard and criteria set forth by existing labour legislation." While it is stated that the "White Paper cannot endorse them as a matter of policy" on the one hand, there is a view on the other hand that "this White Paper recognises that any government is likely to fail if it attempts to counter market forces moved by the invisible hand of economic fundamentals." This statement is problematic because it fails to take into cognisance one of the objectives of government policy, which is geared towards transforming the market through re-regulation.

The White Paper’s prevarication on labour standards may be interpreted to suggest that government is open to persuasion on a two-tier or multi-tier labour market. This interpretation is reinforced by assertions in the White Paper that "provision must be made to meet…labour supply requirements when there is agreement to proceed. Therefore this White Paper suggest that the labour demand for workers whose condition of employment do not comply with the prevailing conditions be satisfied through a legal and regulated system rather than ignore and be fulfilled through illegal means"(White Paper at paragraph 4.4.7). This statement is made in response to demands by farmers who wish to employ seasonal workers during harvesting and planting season. COSATU is not against the employment of seasonal workers per se, however such workers should be employed within the parameters of labour law and should enjoy the rights afforded other workers. We are however perturbed by the rising casualisation of workers and strongly argue for stable forms of employment, which are essential for stable economic progress.

It is further recommended that Nedlac negotiate quotas for workers who could be sponsored by employers under specific programmes in respect of which general conditions of employment do not apply and are regulated by special conditions (the White Paper at paragraph 4.4.7).

Secondly, there is no definition of what is meant by ‘economic fundamentals’. In our view the market must be considered as a social construct and legislation is necessary to shape behaviour in the market in line with developmental objectives. For example, under apartheid the dictates of the ‘market’ were the unscrupulous exploitation of workers, particularly foreign workers. The Department of Labour has undertaken a programme to transform the apartheid labour market to maintain workers rights and improve their living conditions. We question the perceived macroeconomic benefits from unscrupulous exploitation of illegal foreigners who are invariably paid starvation wages. The only benefit is the depression of workers wages and profits for businesses. In addition, there is evidence showing that the low-wage sectors such as agriculture (which employed illegal foreigners) far from creating jobs, have actually shed employment at a rapid pace.

• We therefore recommend deletion of the paragraph 4.4.5 because it transmits mixed signals whether immigration policy would reinforce labour standards or will attempt to satisfy the demands of ‘market forces’ for a two-tier labour market. Further all formulations which suggest the waiving of minimum labour standards for migrant workers must also be deleted.

The White Paper proposes that upon application to the Immigration Service a corporate permit will be issued to a business intending to relocate human resources. The business concerned would handle the visas as well as the work permits directly on the basis of delegation from the IS. COSATU has no problems with the corporate work permit per se but with the proposed system to administer such permits. We do not support the delegation of regulatory functions to business particularly the issuing of visas. We are not convinced that the Immigration Service is unable to fulfill this function. The White Paper does not motivate why this function should be delegated to business. If it is based on the need to expedite the processing of applications it is not apparent why the IS cannot put in place systems to expedite visa applications in terms of corporate permits.

The White Paper is based on the perception that the IS would not have sufficient capacity hence the devolution of responsibility coupled with the intention to privatise elements of enforcement functions. In our view, priority should be to build the capacity of the IS rather than a priori approach to hand over service to the private sector without having first determined how the new institution will function and an assessment of existing capacity including its shortcomings. If the IS is assumed to lack capacity even before it is established this raises the question whether it will have the necessary capacity to monitor businesses. An effective IS is essential to curtail and address corruption.

One of the tenets of the White Paper is simple and responsive administration. However, the red tape proposed to deal with corporate work permits is in fact cumbersome. An employer has to secure a certificate from the Department of Labour that the said employer will comply with labour legislation. The underlying logic of ensuring compliance with labour legislation is understood and supported, but it is important to ascertain whether the mechanism is not overly bureaucratised.

• The issuing of visas and permits should be retained in the IS since we do not support the delegation of this function to business. As outlined in the White Paper the issuing of corporate permits should be subject to national priorities identified from time to time by the Immigration Review Board. Labour’s participation in determining national policy is also important. This should be realised through labour’s representation on the Immigration Review Board and through discussions at Nedlac. Further the certificate from the Department of Labour should be reassessed.

The White Paper laments the unabated brain drain currently in motion as a number of skilled people leaves the country. However, it falls short of providing a comprehensive framework to address this problem. The White Paper proposed a two-fold strategy based on acquiring skills though creating a special class of permanent or temporary permits for people with exceptional skills or qualifications. Coupled with this is the requirement that foreign investors who seek permission to reside in South Africa undertake to train a certain number of people. While these proposals are important, however, they do not constitute in themselves a detailed coherent strategy to deal with the complex problem of brain drain. A number of papers prepared for the Green Paper advanced innovative proposals that can serve as a basis for a human resource development strategy.

Another area of concern is the evaluation of who adds value in our society between ‘skilled’ and ‘unskilled workers’. It is assumed in the White Paper that only ‘skilled’ workers add value and energy should be invested in attracting them to South Africa. This situation is likely to result in perverse outcomes such as effectively entrenching the current race-determined system of access to the country or brain drain of African countries. Invariably, so called ‘unskilled workers’ are considered to be a burden to society and should be barred from entry. While it is important to prioritise jobs for South Africans who are unskilled, the notion that unskilled workers from SADC do not add value is questionable. This does not augur well with the geographic hierarchy proposed in the White Paper to give priority to SADC.

In our view, the distinction between skilled and unskilled workers is artificial and is likely to prove insufficiently flexible to deal with the future structural changes. COSATU has advanced the notion of life-long learning in which prior learning is recognised. Therefore driving a hard and fast wedge between skilled and unskilled workers may lead to failure to recognise prior learning. Therefore, qualifications are overemphasised at the expense of organic learning through experience. Further mechanisms for identifying and attracting the specific skills required are left unspecified, with an unresolved tension between market forces and government intervention.

• There is a need for a coherent and integrated human resource development strategy geared towards the long-term skills development of South Africans. Such a strategy should contain short term, medium and long term strategies to address the brain drain. The Cabinet Human Resource development cluster should be charged with developing such a strategy, particularly the Departments of Labour, Health, Education, Home Affairs and Trade and Industry. The key objective of the strategy should be to develop strategies to retain skills and develop skills in areas of shortage. In our view, reliance on attracting foreign skills as the key planks of human resource development is not sustainable and has the perverse consequence of engendering dependency and discouraging development of local skills.
• Co-ordination between the Immigration Review Board, the Department of Labour and the National Skills Authority (NSA) is imperative. These bodies are charged with the task of identifying skills priorities for South Africa. The NSA in particular has the duty of investing resources in targeted skills priorities. The notion of unregulated entry of skilled immigrants into South Africa as advanced by the BSA is not supported by COSATU. This must be subject to national regulation and priorities, as well as a conscious strategy to invest in skills development of South Africans.

The White Paper at paragraph 8.6.2 suggests that on "recommendation formulated by the Department of Labour, the IS could waive the employer’s training contribution upon proof that the business concerned has undertaken an internal programme of training of South Africans." First it is not clear why this waiver is necessary and the criteria that will guide the system of exempting employers. Secondly, there is an apparent inconsistency in the White Paper because at paragraph 8.5.1 the employment of a foreigner is subject to the employer paying into a national training fund a ratio of the salary, as prescribed by regulation. Thirdly, the waiver is inconsistent with the Skills Development Levies Act, which already exempts a category of employers from payment of the skills development levy. In addition, the Skills Development Act envisage that all employees, both South Africans and foreigners will benefit from the skills development scheme.

• In line with the Skills Development Act, all employers must pay the Skills Development Levy. The levy is in terms of the Act split between SETA’s, which receives 80%, and the National Skills Fund entitled to 20%. The National Skills Fund is aimed at funding nationally determined priorities. Further, all employees should benefit from skills development which is necessary to support economic development. With respect to payment to the nationals skills fund to ensure that employment of foreigners is marginally expensive and to contribute towards skills development it is important that this matter be placed before the National Skills Authority for discussion and if necessary to the NSA should develop guidelines on this matter.

The Green Paper at paragraph 2.4.4.6 recommended that the system of compulsory deferred pay should come to an end. COSATU supported the termination of the system of compulsory deferred pay as it was subject to abuse and had a negative impact on workers and their families, particularly in mining and agriculture. Compulsory deferred pay, section 41 (of the Aliens Control Act) exemptions represented some of the worst aspects of the migrant labour system. In addition we stated that the system of "special inter-governmental labour agreements must be restructured as part of the Southern African regional economic development plan." However, we are conscious of the fact that historically the system of compulsory deferred pay had macroeconomic and social benefits for the sending countries. We also note current efforts in the mining industry to develop a system of voluntary deferred pay through a restructured TEBA (The Employment Bureau of Africa).

The White Paper makes a passing reference to compulsory deferred pay and totally avoids providing an unequivocal stance on the issue. Despite reference to the Green paper, it is not stated whether the White Paper supports the position to end compulsory deferred pay and an unconvincing argument is put forward that "it is not the role of the migration system to adjudicate these controversial matters" (the White Paper at paragraph 4.4.7). The White Paper reticence on this matter can be interpreted to either mean that the drafters believe the system should continue or that there is a dearth of innovative proposals to address this matter.

• In line with the recommendations of the Green Paper, the system of compulsory deferred pay must be ended. The renegotiations of bilateral agreements and the terms of such agreement should be inclusive, including the unions. This must be placed at Nedlac and the relevant collective bargaining forums for discussion.

In the submission to the Green Paper we argued thus: any requirement that migrant workers from other countries be treated as ‘temporary’ workers, that is, such workers be subjected to a mandatory process of re-application for permission to work in South Africa or of mandatory periodic renewal of their employment contracts is likely to have negative effects leading to the increased fragmentation and casualisation in the labour market as employers are given the opportunity to employ temporary instead of full-time workers.

This could have dire consequences for – and weaken the bargaining position of – both foreign workers and South African workers who may be pressured into short-term ‘competitive’ employment contracts. Furthermore, the treatment of foreign workers as ‘temporary’ would contradict the commitment to grant workers all the rights and protections of local workers and would lead to the entrenchment of a two-tier labour market.

Against this background we note that the proposals that "the work permits to foreigners should be issued or renewed for as long as the employers wishes to pay for the alien because, for as long as s/he pays the extra costs for the alien’s employment, that foreigner is by definition needed for our economic growth" (White Paper p.32). However, the White Paper does not specify whether these workers will be required to renew their permit at regular intervals. Essentially, foreign workers are still regarded as temporary in the White Paper, but how the system will operate is very unclear.

We however, welcome the proposal that after five years working in South Africa, any temporary worker may by right become a resident. This is an improvement from the position that temporary legal access to the South African labour market should not be seen as a first step towards permanent residence.

• The White Paper must clarify temporary status of foreign workers and how the system will operate. COSATU strongly feels that foreign workers should not be required to periodically renew permits, as was the experience of workers in mining. The White Paper itself, recognise that temporary status is a disincentive to invest in South Africa by for example purchasing houses (White Paper, p.32).

COSATU submits that regional economic development is the only sustainable route to address push-factors leading to illegal migration in the SADC region. This is recognised in the White Paper where it is stated that "persistent economic disparity, poverty and political and social turmoil are likely to continue to force or induce people to migrate from the rest of the continent towards South Africa" (the White Paper at paragraph 4.2.3.). However, the White Paper’s approach to regional economic development is problematic and misses the opportunity to put in place an enabling framework for regional cooperation on migration issues as well as economic development.

The White Paper moves from the premise that "under the present circumstance it is not possible for South Africa to deal with the push factors acting in the rest of the continent nor build a migration system predicated on the improvement of these factors" White Paper at paragraph 4.2.3. While this assumption may be valid, the White Paper avoids identifying the minimal steps to arrive at a long-term solution.

In addition, there is passing reference to the SADC protocol currently under consideration, at paragraph 4.3. Again, there is no attempt in the White Paper to provide a framework that should guide South Africa’s contribution to the protocol. This is left to an undefined process and we believe that the White Paper is remiss on this score. While noting that it is not the role of migration policy to settle the SADC economic development framework, the white paper should at least set out the parameters for a SADC protocol on migration, including the role of migration in supporting regional economic development.

• The White Paper should set out criteria that will guide South Africa’s contribution on the evolving SADC migration protocol. The protocol should be tabled before Nedlac for discussion. Further, there should be co-ordination within government on SADC development strategy. Departments such as Home Affairs should contribute to the strategy by elaborating a clear migration strategy for the region.
• The issue of quotas should be placed before Nedlac for discussion as envisaged in the White Paper.

The White Paper proposes that the Department of Home Affairs Chief Directorate be restructured as an Immigration Service. The Immigration Service is modelled on the US Immigration Service and will enjoy autonomy similar to SARS. It will have its functional head subject to political oversight of the Minister of Home Affairs. The role of the IS is to be a regulatory agency which will issue permits, inspect workplaces and will deal with cases of illegal migration. The IS will operate under the policy directives of the Immigration Review Board which will also adjudicate on appeals against decisions of the IS. The Board is envisaged to be a stakeholder body and will have representative from government, labour, business and civil society.

Both the White Paper and the Green Paper do not make a clear case why an IS in its proposed form is required. For example the White Paper offers no explanation why the current Chief Directorate (Migration) is unable to fulfil the functions that will be performed by the IS. Against this background, it is difficult to judge the relative merits of an independent IS as opposed to retaining the functions in the department of Home Affairs.

While we have reservations on the proposed IS, COSATU recognises the potential role of a revamped enforcement institution. It can address the fragmentation currently experienced with enforcement and de-link migration from the criminal justice system. At the moment enforcement is shared with the police, defence and to an extent with the labour Department inspectorate. In particular, the IS could play a co-ordinating role that will bring together several government departments. While the White Paper proposes issues on which there should be co-operation between the Department of Labour and Home Affairs, it does not spell out the mechanism of such co-ordination. The differences in orientation between the two departments also need to be reconciled. The Department of Labour is concerned with enforcement of workers rights irrespective of their origin, while the chief concern of the Home Affairs Department is illegal migration.

The White Paper at page 46 assert that the IS should "operate separate detention facilities for aliens, so that they are not detained together with ordinary criminals". COSATU supports the de-linking of migration from the criminal justice system and illegal migrants cannot strictly be defined as criminals, unless they have committed ‘criminal’ offences. However, we oppose the proposal in the White Paper (p.46 at paragraph 11) that the IS should continue to rely on privatisation for some of its functions, including detentions. In our view, this proposal commits government to privatisation without first ascertaining whether there is existing capacity within government.

Moreover, the IS will be a new institution and it cannot be concluded beforehand that it will lack capacity and hence it must rely on privatisation. Priority should be given to building the capacity of the IS and to use existing capacity to reinforce the IS. If the argument of privatisation is based on lack of capacity, how then will the IS have the capacity to monitor private institutions and avert corrupt practices.

Another area of concern is the unbalanced representation on the Immigration Review Board. Business will be over-represented through the appointment of expert business persons on the Board as proposed in the White Paper (p.21 at paragraph 5.2). COSATU supports the need for people with expertise on immigration issues to have a place on the board. However, the experts must be drawn on the basis of their expertise, not the constituency they represent. We support the proposal to include labour’s representation in on the Board.

• The IS should serve as a co-ordinating mechanism to pull together various government departments that have a stake in migration issues such as labour and the social service departments. We propose that a Charter of Rights be developed to articulate the rights of immigrants. This Charter can serve to reconcile the difference in orientation between the departments of Labour and Home Affairs and will give meaning to a rights based approach to enforcement.
• Rather than advocate for privatisation, the White Paper should focus on mechanisms to build the capacity of the IS.
• Representation of the Immigration Review Board should be balanced. Experts should be appointed on the basis of their expertise rather than the constituency they come from.

It is important that legislation and policy on international migration contribute to combating xenophobia. A key recommendation of the Green Paper was that policy be crafted in a manner that allow for rational and less emotive debate through the use of objective and neutral terminology. Addressing xenophobia is an important priority in South Africa. Foreigners, particularly ‘illegal immigrants’ have been blamed for several misdemeanours such as crime and unemployment. The White Paper’s emphasis in this regard is welcome.

In many respects the White Paper should be improved to ensure that it does not fuel xenophobia. First, it is important that apartheid-era terminology such as ‘aliens’ be excised from the White Paper. Secondly, it is important to debunk the notion that illegal immigrants have flooded South Africa. Thirdly, the unsubstantiated claims regarding the negative impact of illegal immigrants on the provision of services must either be elucidated or removed from the White Paper (section 6, paragraph 3.1, p.16).

COSATU’s primary concern is around the workability of the proposed control mechanism. The proposed mobilisation of the general public, employers, service providers and other government departments in controlling unauthorised immigration could be questionable in practical terms. Other proposed control measures such as finger printing, photograph identity cards and the maintenance of computer records raise the question of cost-effectiveness and practicability. Plans to mobilise members of the public to act as snoops and informers fuels rather than deflates xenophobia.

• Apartheid-era terminology such as aliens should be removed from the White Paper. The enforcement of immigration policy and legislation should be left to well-trained officials of the immigration service rather than mobilise the entire society against illegal foreigners. The emphasis placed on training in the White Paper will go a long way in developing an efficient enforcement and sensitivity among immigration officials.

The White Paper on International Migration is an important step forward to ending the outmoded apartheid system of international migration. There are positive elements supported by COSATU in the White Paper. However, the submission has registered COSATU’s concern with aspects of the White Paper. The concerns include the White Paper’s fixation with enforcement and control and the contradictions inherent in the White Paper, particularly with respect to the mixed signals regarding the labour market. We have advanced a set of recommendations that we hope will be taken on board.

It is important that the White Paper be revisited and amended in areas where substantive concerns have been raised. It is our belief that the Portfolio Committee should mandate the reformulation of the White Paper to take on board some of the issues raised during the public hearings. Space must also be provided for the portfolio committee to consider the Nedlac report on the discussions around the White Paper.

We thank the portfolio committee for providing us the opportunity to participate in the public hearings. COSATU is willing within its limit to assist the portfolio committee and the Department in whatever way deemed necessary.