Date: 19/05/2003
Source: Ministry of Home Affairs
Title: Buthelezi: Inaugural meeting of Immigration Advisory Board
INAUGURAL MEETING OF THE IMMIGRATION ADVISORY BOARD, ADDRESS BY MANGOSUTHU BUTHELEZI, MP, MINISTER OF HOME AFFAIRS, Cape Town, 19 May 2003
It is for me a great pleasure to open the Inaugural Meeting of the Immigration Advisory Board. This is the moment of completion of the long process, which led to the formulation of a new system of migration control for South Africa. With the inauguration of this Board the formulation of a new system of migration control is now complete. Yet, this is also the commencement of a new process. In fact, since the beginning of the process of policy formulation on migration control, it was soon realised that in our field policy formulation is not static but remains constantly dynamic. There is a constant need to update, review and modify policies to adjust them to the changing needs of our economy and the demands of our society. It was also realised that considerations underpinning policy formulation in the field of migration control are of an inter-departmental nature, and cut across many line functions of government, segments of society and interest groups.
Therefore, the Immigration Advisory Board has been so conceived so as to reflect in its composition the various components of the complex discourse, which underpins policy formulation in our field. Each issue which will engage all of us as we give further shape and substance to the new system of migration control, may see juxtapositions of interests and views not only between government and civil society, but also within government or among those who are here as representatives of civil society. For instance, it may happen, as it did in previous stages of policy formulation in this field, that the views of the Department of Trade and Industry may differ from those of the Department of Labour in respect of certain features of work permits or investor permits, and that such diversification of views is reflected in the views of the representatives of civil society, labour and business. This is what this Board is all about. This Board is the clearing-house of different policy views and the place where differences ought to be reconciled. This Board is also the place where inter-departmental co-ordination and consultation is to occur in an institutionalised manner.
Migration control requires a broad spectrum of inter-departmental activities and consultation. In the past, such consultation took place on an ad-hoc basis. It must now take place on an institutionalised basis. This is particularly important in the light of the fact that the Immigration Act has placed border control firmly within the responsibility of the Department of Home Affairs. It is obvious that border control can only be conducted by a number of organs of the State working together, and that in this respect the Department of Home Affairs can only operate as the leading organ of State with the final statutory responsibility. Furthermore, the Immigration Act has created a new system of temporary and permanent residence permits, which no longer requires consultation amongst various organs of State when single applications are being considered. In the past, in processing single applications, my Department had to liase with other organs of State, such as the Department of Labour. The new system of migration control is about elevating the requirement for consultation from the processing of single applications to the policy level.
Various departments and organs of civil society must contribute to the development of the actual features of permit requirements, and this is the venue where such consultation is to take place. However, the intention of the new system of migration control is that of designing objective permit criteria and requirements, which can be applied by our officials without having to resort to evaluations or consultations. Therefore, it is within this Board that deliberations need to take place to adjust the system and decide how ajar, at any given time, the migration door ought to be kept. The new philosophy of migration control is that the issuance of permanent or temporary residence permits should be made easy, without using permit requirements as an obstacle to reduce the number of those who qualify for them by means of obstacles and difficulties. Obtaining a permit should not become an obstacle race. If limits are to be placed they should be the product of policy and should be embodied in regulations, which limit the number of permits to be issued, without making the issuance of such permit unnecessarily difficult.
However, for the time being, as the President has often announced, South Africa has embraced and must maintain a liberal policy in performing migration control. We need to enable all those who can make a contribution towards our economic growth and social stability to come to South Africa and stay on a temporary or permanent residence basis. We will need to implement this policy working through its various aspects and possible positive and negative implications. This Board has a monitoring function of how policies perform and the effects they produce. One of the purposes of this Board would be that of supervising research, which I may, from time to time, decide to commission. The composition of this Board gives it a unique qualification to act as a project research manager. In fact, the research and information is at the basis of any policy formulation exercise. We need research into the factual basis of our policies, for instance to determine how many illegal foreigners are presently in the country and how many of them are involved in socially undesirable activities.
However, we also need research to create the conceptual and cultural paradigm within which policy formulation takes place. For instance, having attended conferences and discussions at the international level during the past nine years, I realise that there is still a major gap between the South African and the international understanding of the benefits of migration. Internationally there is a much clearer understanding that properly controlled migration is a positive phenomenon and that in most cases immigrants increase economic growth with their skills or merely by virtue of their personal motivation and entrepreneurial capacity.
Therefore, I have identified the need to conduct a research in this field, which is closely connected with the field of xenophobia. One of the many roots of xenophobia is the perception that foreigners in our country are a liability, rather than an asset. In your package of information you will have a detailed outline of this research project proposal, which, depending on your advice, might be subject to refinement and amendments. What is important is to build knowledge and information both within government and civil society about the benefits of immigration and root out xenophobia. South Africa must embrace the benefits of the age of globalisation and accept its challenges. One of the important elements of globalisation, which affects our own line function, is the increasing importance of the General Agreement of Trade in Services, which brings the free circulation of people within the dimension of trade liberalistion. This international agreement promotes the free circulation of those who provide services by virtue of their presence in a foreign country.
Therefore, we must accept and embrace that our new system of migration control is launched within the spirit of a globalising world, which draws strength from the free circulation of people. For this reason, I fully endorse the motto of the Immigration Advisory Board, which is Aperere Terram Gentibus, which means Opening The Land For The People. This motto, which has been proposed to me after it was round robin with the Chairman of the Board and many of its members, was forged during the age of enlightenment and reflects the cosmopolitan values of progress and prosperity being generated through the unhindered coming together of the many peoples of the world. Our new system of migration control embraces the notion of opening our front door for legal, needed and beneficial foreigners, whilst closing the back door to illegal immigration. Therefore, we need to strengthen the security aspect and the social control in respect of those who are within South Africa illegally. In the past we have been unduly restricted in respect of those who were within the system, while we have remained almost impotent in respect of those who, in greater numbers, were outside of the system.
The Immigration Act provides us with the tool to begin deterring, detecting and redressing illegal immigration. We will need to walk a difficult tightrope between providing some degree of effective enforcement to our immigration laws and avoiding creating undesirable xenophobic sentiments within our communities. For this reason, immigration laws will need to be enforced primarily in workplaces and in respect of regulated segments of our industry where it is possible to verity the identity and the immigration status of people in a non-intrusive manner. It is not my policy to stop people in the street to perform any of such checks.
In your documentation for this meeting you have been provided with the documents, which indicate the powers, functions and responsibilities of this Board. The starting point is obviously that, with a few exceptions, this Board exercises advisory, rather than executive powers. This means that the purpose of this Board is, in fact, that of advising me as the Minister of Home Affairs, and I am left with the ultimate power to make the relevant decision. However, it is my intention to work closely with this Board, and I request that this Board work closely with me. As my advisor, this Board should be attuned to the needs of the Department and be attentive to my guidance.
In this respect the most urgent matter to which this Board must attend, as my advisor, is that of providing its input in respect of the making of Regulations. In terms of section 1(1)(xxxii) read together with section 7(4) of the Immigration Act, the Board must provide me with its advice in respect of the regulations I have to make in terms of Section 7 of the Immigration Act. I trust that most of you are familiar with the general aspects of the events, which surrounded the making, and promulgation of the Immigration Regulations. The Immigration Regulations which are presently in force, were made in terms of section 52 of the Immigration Act, which deals with the making of regulations before this Board is fully operational and which, on the advice of senior counsel, I read as not requiring me to follow the notice and comment procedure set out in section 7 of the Act. However, such Regulations were challenged before the Cape High Court, not because of their merits and contents, but on the basis of a different reading of section 52 of the Act, in accordance with which section 52 of the Act does not exclude the section 7 notice and comment procedure, but merely the requirement to obtain the advice of the Board prior to its coming into operation.
This latter interpretation was accepted by the Cape High Court, which ruled the Immigration Regulations to be invalid. However, because the Immigration Act came into force, Immigration Regulations were necessary as it would have been impossible to administer the Immigration Act with the old Regulations adopted under the Aliens Control Act. I also doubted the correctness of the decision of the Cape High Court. For this reason, I have appealed such decision to the Constitutional Court. Nonetheless, I immediately began implementing the decision of the Cape High Court and on March 14, 2003 I began the section 7 notice and comments regulation-making process. After the initial notice period, which is in your package of information, on April 22, 2003 I issued draft regulations for a period of public comments, which is closing soon. Depending on the outcome of the Constitutional Court case, I may be in need of requesting this Board to express its consultative function in respect of such draft regulations on the basis of urgency. Therefore, I request that each of the members of this Board begins applying his or her mind to this issue and I will liase with the Chairman should it be necessary for this Board to provide me with its advice on an urgent basis. Because aspects of this matter are somehow complex, I have requested my Ministerial Advisor to brief the Board on its background. I have also requested him to liase with the Board to decide on how to deal with the public comments which I have received and which, institutionally, are obviously to be directed to me and are for me to take into account and respond to.
It is also urgent for me to receive the advice of the Board in respect and for the purposes of Regulation 14(3) of the Immigration Regulations, which relates to the creation of regions for purposes of the administration and implementation of the Act. Historically, migration control has always been structured on a regional basis and the old Immigrants Selection Boards were also regionally based. In terms of our new reform, regions will carry the responsibility of issuing permits as the regional committees used to do in respect of permanent residence, but they will do so also in respect of temporary residence. This will enable our Head Office not to be concerned with any case or application, but concentrate its entire resources on policy formulation, capacity building, training and assistance to the regions in terms of monitoring the uniform application of the Act, building capacity, redressing corruption and, in general, trouble-shooting.
Regions will have not only the function of issuing permits but also that of enforcing the law in respect of illegal foreigners. My initial inclination would be that of designing initial regions which coincide with those of the Department of Labour, which will facilitate co-ordination both from the point of view of issuing work and corporate permits, as well as in respect of inspecting workplaces. I made a preliminary decision in this sense which I submit to you for your advice as a matter of utmost urgency so that it can be finalized at least as an interim measure until the time when this Board will have a greater opportunity to apply its mind to the issue and redefine any region. We also need to define regions abroad. In the past few months we have sent several of our officials to look at the status of regions abroad and to conduct training also in respect of Foreign Affairs officials. At this juncture it seems that we could demarcate the whole of North America as a region headed by a Regional Director, either in New York or in Washington, DC. Similarly, there is potential for regions to be demarcated in Europe with Regional Directors either in London or in Berlin. Obviously, each Regional Director so appointed will have the power to delegate functions to any Home Affairs official or mission in his or her territory and thereby ensure that permits can be issued from other venues under a common regional framework of management, supervision and co-ordination.
As this Board becomes more acquainted with the many issues of migration control, it will need to exercise its leadership to bring together the new function of border control, which, as I indicated earlier, will need to be the product of a harmonious co-ordination of many organs of State. I will organise a session for this Board to be briefed on the challenges of border control. We need to develop a long-term plan, which will unify the control of borders, not only in terms of land, but also marine border. In this respect, during a recent trip of my Acting Director-General and other officials to the United States, we developed a framework for co-operation with the US Department of Homeland Security, which includes border patrol, customs and immigration services. We are in the process of designing the funding of a project, which may enable us to receive the assistance of the US DHS to develop a long-term plan of border control co-ordinating existing agencies and organs of State.
Another urgent item on the Board's agenda shall be that of exercising the advisory function contemplated in section 3(1)(l) relating to the delegation of my powers under the Act. I have requested my Acting Director-General to submit to the Board a copy of the delegation instrument, which has been prepared for me by the Department. I wish to stress how, for the first time, the Act introduces the mechanism of performance -auditing tied to delegation. This is one of the many aspects in respect of which the Act aims at improving on the administrative structure of migration control. The Board will also need to prepare itself to exercise the consultative functions contemplated in section 22 of the Act relating to exchange permits, section 30 of the Act relating to the identification of undesirable persons, section 31 of the Act relating to the exemption of people or categories of people from the provisions of the Act and Regulation 28(3) relating to the possibility of changing the training fee tied to the quota system for the so-called section 19(1) permits. Down the road, the Board will be called upon to provide its advice to identify the need of providing special quotas of work permits for people who are particularly required by our economy and may obtain a permit even without a job offer in terms of regulation 28(4)(e) or in respect of the establishment of a new association of immigration practitioners in terms of item 2(2) of part A of schedule F of the Immigration Regulations.
We are at the time of the launching a new system of migration control with many features, which will need to be fully developed at a later time. What we now have is a basic system, if not a blueprint of what ought to be developed over time and with due consideration. In many aspects what we have is, admittedly, unsophisticated and it is meant to be tried and tested before we can fully understand and appreciate how it should be developed into something more complex and sophisticated. For instance, the training fee associated with work permits will, in all likelihood, be differentiated so as to reflect different categories of workers so as to differentiate between those who are more needed in respect of whom such fee can be lowered, and those who are less needed, in respect of whom such fee can be increased. However, even such exercise would require that we demarcate and delineate categories which make sense, not just in theory but that may be administered in the daily practice of migration control without increasing administrative burdens. My plea is that we try and test simple solutions before we attempt to complicate them.
In this respect I must plead with all the members of this Board to think in terms of migration control at all times. Each of the members of this Board comes from a different background and may be tempted to bring the features of his or her discipline within our discourse. It is essential that each of you studies very carefully the Immigration Act and its Regulations and understands the underlying features, concepts and reasons of the discourse of migration control, both from an administrative viewpoint as well as a legal one. There are things, which are relevant and important in other fields, such as the distinction between registered and unregistered institutions of learning or primary, secondary and tertiary schools, which may have no relevance in point of migration control. Similarly, there may be categories of workers, professions or skills which are easy to enunciate and talk about at the conceptual or academic level, but become very arduous to administer and verify in respect of concrete applications for work permits based on such categories. Therefore, my plea with officials of other departments who are members of this Board is to learn to think in terms of migration control when they make inputs in our discourse.
As we are at the beginning of a new system of migration control, one will expect that we will face greater difficulties than we expect. The work of this Board will be challenging and demanding during the initial period. Therefore, I must really urge all the members of this Board to consider their appointment seriously. This cannot be a secondary activity or a hobby. Serving on this Board requires commitment and dedication. I was inclined to request that all members of this Board serve on a full-time basis, but I then realized that this might not be absolutely necessary. Nonetheless, I would like to see at least a few of the members of this Board serving on a full-time basis or at least making the Board's activities their primary concern.
I have signified to my colleagues members of Cabinet, whose representatives are members of this Board, that their representatives ought to be fully dedicated to their activities on this Board and be released from other concomitant duties and responsibilities which may interfere with their service on this Board or prevent them from giving the full measure of time required. Obviously, I am not expecting them to work full-time for the Board and this will, of course, not be necessary. I just do not want this Board to become paralysed by people not being able to convene because diaries are to be co-ordinated on the basis of finding free days amongst other commitments. I have instructed my Acting Director-General to finalize contractual arrangements with the members of this Board who are not civil servants, which gives them the option to serve on a full-time or on a part-time basis, or to upgrade from one to the other. I know that some of the members already have prior commitments, such as those of Ms Willand, who is training for the Olympic Games, and our Chairman, Prof James, who has scheduled travel and commitments to the United States. I also know that members such as Mr Pokroy and Mr Watters have law practices, which need to be attended to. However, I hope that all of them can organise their commitments in such a way that the work of this Board will not suffer.
In terms of the Act and its Regulations, the Board can operate through its committees. I think it is important that as soon as possible the Board develops and implements a committee structure. Obviously, members who have interests and qualifications on matters such as work permits and their implications on labour markets, may have a lesser interest on issues of border control and vice-versa.
In addition to the advice that the Board is required to provide in terms of law and regulations in terms of the Act, the Board is required to provide me with advice on any matter, which, from time to time, I may table before this Board. I will liase closely with the Chairman to this end. At this juncture there are a few matters relating to regulation making which ought to be dealt with in specific terms over and above the general advice, which the Board may or may not give me in respect of the draft regulations, which I have published on April 22, 2003. The first issue is whether we should keep records of the entries and departures of our citizens. Most countries do not do so. My colleague, the Minister for Safety and Security, is urging an amendment of the regulations in this sense, while I received submissions aimed at protecting the right of privacy and arguing that such recording contravenes the Act. I will table before this Board the relevant documentation. The second issue relates to the exemption from visa requirements of Taiwan. My colleague, the Minister of Foreign Affairs, has requested an amendment of the present Immigration Regulation to impose again visa requirements on Taiwan. Also in this respect the relevant documentation will be tabled before the Board in due course.
In concluding my remarks I wish to express a sincere word of appreciation to all those who have enabled this process to reach this point, including the members of the Portfolio Committee of Home Affairs, and those of the Standing Committee on Social Services of Parliament. A special word of appreciation should go to Mr Lambinon who has been following this process since its inception with the Green Paper on International Migration. A word of appreciation must also go to my Advisor who was a member of the White Paper Task Team and has worked tirelessly to bring this reform into shape and reality. Obviously, a special word of appreciation goes to the Chairman of our Board who was the Chairman of the Green Paper Task Team and a member of the White Paper Task Team. By being the Chairman of this Board he represents the continuity and consistency of this process and I am sure that under his Chairmanship this process will now move forward to the intended heights of excellence and service.
I, myself, feel that an enormous burden is now off my shoulders. None of you can have the slightest idea of what has been involved in bringing this process to this point. I had to bear a great deal of humiliation and overcome difficulties and obstacles of all sorts, most of which are, and will, in all likelihood, remain untold. However, I now need to pass part of the responsibility onto you. I brought the process to this point. Now the process belongs to you and the people of South Africa. I have been inspired by no other desire than that of serving the needs and aspirations of the country I love. I have acted only under the mandates of a culture of service to my country. I remain convinced that liberal migration policies are an essential element to secure the long-term success of South Africa. It is now your responsibility to make this system work at its best and nourish it into adulthood. A new system has been born with great pain. As the midwife of this system, I now introduce it to those who have been charged with the responsibility of nourishing its growth. Understand, respect and nourish the needs of this new system and ensure that together we can enable it to provide its contribution towards making South Africa the country of economic prosperity and social stability, which we have always dreamed it, could become. May God grant you inspiration, wisdom and integrity as you carry out your functions?
With these words it gives me great pleasure to declare the Immigration Advisory Board of South Africa officially established and operational and to wish upon it the blessings and inspiration from God Almighty.
Issued by Ministry of Home Affairs
19 May 2003
Source: Ministry of Home Affairs
Title: Buthelezi: Inaugural meeting of Immigration Advisory Board
INAUGURAL MEETING OF THE IMMIGRATION ADVISORY BOARD, ADDRESS BY MANGOSUTHU BUTHELEZI, MP, MINISTER OF HOME AFFAIRS, Cape Town, 19 May 2003
It is for me a great pleasure to open the Inaugural Meeting of the Immigration Advisory Board. This is the moment of completion of the long process, which led to the formulation of a new system of migration control for South Africa. With the inauguration of this Board the formulation of a new system of migration control is now complete. Yet, this is also the commencement of a new process. In fact, since the beginning of the process of policy formulation on migration control, it was soon realised that in our field policy formulation is not static but remains constantly dynamic. There is a constant need to update, review and modify policies to adjust them to the changing needs of our economy and the demands of our society. It was also realised that considerations underpinning policy formulation in the field of migration control are of an inter-departmental nature, and cut across many line functions of government, segments of society and interest groups.
Therefore, the Immigration Advisory Board has been so conceived so as to reflect in its composition the various components of the complex discourse, which underpins policy formulation in our field. Each issue which will engage all of us as we give further shape and substance to the new system of migration control, may see juxtapositions of interests and views not only between government and civil society, but also within government or among those who are here as representatives of civil society. For instance, it may happen, as it did in previous stages of policy formulation in this field, that the views of the Department of Trade and Industry may differ from those of the Department of Labour in respect of certain features of work permits or investor permits, and that such diversification of views is reflected in the views of the representatives of civil society, labour and business. This is what this Board is all about. This Board is the clearing-house of different policy views and the place where differences ought to be reconciled. This Board is also the place where inter-departmental co-ordination and consultation is to occur in an institutionalised manner.
Migration control requires a broad spectrum of inter-departmental activities and consultation. In the past, such consultation took place on an ad-hoc basis. It must now take place on an institutionalised basis. This is particularly important in the light of the fact that the Immigration Act has placed border control firmly within the responsibility of the Department of Home Affairs. It is obvious that border control can only be conducted by a number of organs of the State working together, and that in this respect the Department of Home Affairs can only operate as the leading organ of State with the final statutory responsibility. Furthermore, the Immigration Act has created a new system of temporary and permanent residence permits, which no longer requires consultation amongst various organs of State when single applications are being considered. In the past, in processing single applications, my Department had to liase with other organs of State, such as the Department of Labour. The new system of migration control is about elevating the requirement for consultation from the processing of single applications to the policy level.
Various departments and organs of civil society must contribute to the development of the actual features of permit requirements, and this is the venue where such consultation is to take place. However, the intention of the new system of migration control is that of designing objective permit criteria and requirements, which can be applied by our officials without having to resort to evaluations or consultations. Therefore, it is within this Board that deliberations need to take place to adjust the system and decide how ajar, at any given time, the migration door ought to be kept. The new philosophy of migration control is that the issuance of permanent or temporary residence permits should be made easy, without using permit requirements as an obstacle to reduce the number of those who qualify for them by means of obstacles and difficulties. Obtaining a permit should not become an obstacle race. If limits are to be placed they should be the product of policy and should be embodied in regulations, which limit the number of permits to be issued, without making the issuance of such permit unnecessarily difficult.
However, for the time being, as the President has often announced, South Africa has embraced and must maintain a liberal policy in performing migration control. We need to enable all those who can make a contribution towards our economic growth and social stability to come to South Africa and stay on a temporary or permanent residence basis. We will need to implement this policy working through its various aspects and possible positive and negative implications. This Board has a monitoring function of how policies perform and the effects they produce. One of the purposes of this Board would be that of supervising research, which I may, from time to time, decide to commission. The composition of this Board gives it a unique qualification to act as a project research manager. In fact, the research and information is at the basis of any policy formulation exercise. We need research into the factual basis of our policies, for instance to determine how many illegal foreigners are presently in the country and how many of them are involved in socially undesirable activities.
However, we also need research to create the conceptual and cultural paradigm within which policy formulation takes place. For instance, having attended conferences and discussions at the international level during the past nine years, I realise that there is still a major gap between the South African and the international understanding of the benefits of migration. Internationally there is a much clearer understanding that properly controlled migration is a positive phenomenon and that in most cases immigrants increase economic growth with their skills or merely by virtue of their personal motivation and entrepreneurial capacity.
Therefore, I have identified the need to conduct a research in this field, which is closely connected with the field of xenophobia. One of the many roots of xenophobia is the perception that foreigners in our country are a liability, rather than an asset. In your package of information you will have a detailed outline of this research project proposal, which, depending on your advice, might be subject to refinement and amendments. What is important is to build knowledge and information both within government and civil society about the benefits of immigration and root out xenophobia. South Africa must embrace the benefits of the age of globalisation and accept its challenges. One of the important elements of globalisation, which affects our own line function, is the increasing importance of the General Agreement of Trade in Services, which brings the free circulation of people within the dimension of trade liberalistion. This international agreement promotes the free circulation of those who provide services by virtue of their presence in a foreign country.
Therefore, we must accept and embrace that our new system of migration control is launched within the spirit of a globalising world, which draws strength from the free circulation of people. For this reason, I fully endorse the motto of the Immigration Advisory Board, which is Aperere Terram Gentibus, which means Opening The Land For The People. This motto, which has been proposed to me after it was round robin with the Chairman of the Board and many of its members, was forged during the age of enlightenment and reflects the cosmopolitan values of progress and prosperity being generated through the unhindered coming together of the many peoples of the world. Our new system of migration control embraces the notion of opening our front door for legal, needed and beneficial foreigners, whilst closing the back door to illegal immigration. Therefore, we need to strengthen the security aspect and the social control in respect of those who are within South Africa illegally. In the past we have been unduly restricted in respect of those who were within the system, while we have remained almost impotent in respect of those who, in greater numbers, were outside of the system.
The Immigration Act provides us with the tool to begin deterring, detecting and redressing illegal immigration. We will need to walk a difficult tightrope between providing some degree of effective enforcement to our immigration laws and avoiding creating undesirable xenophobic sentiments within our communities. For this reason, immigration laws will need to be enforced primarily in workplaces and in respect of regulated segments of our industry where it is possible to verity the identity and the immigration status of people in a non-intrusive manner. It is not my policy to stop people in the street to perform any of such checks.
In your documentation for this meeting you have been provided with the documents, which indicate the powers, functions and responsibilities of this Board. The starting point is obviously that, with a few exceptions, this Board exercises advisory, rather than executive powers. This means that the purpose of this Board is, in fact, that of advising me as the Minister of Home Affairs, and I am left with the ultimate power to make the relevant decision. However, it is my intention to work closely with this Board, and I request that this Board work closely with me. As my advisor, this Board should be attuned to the needs of the Department and be attentive to my guidance.
In this respect the most urgent matter to which this Board must attend, as my advisor, is that of providing its input in respect of the making of Regulations. In terms of section 1(1)(xxxii) read together with section 7(4) of the Immigration Act, the Board must provide me with its advice in respect of the regulations I have to make in terms of Section 7 of the Immigration Act. I trust that most of you are familiar with the general aspects of the events, which surrounded the making, and promulgation of the Immigration Regulations. The Immigration Regulations which are presently in force, were made in terms of section 52 of the Immigration Act, which deals with the making of regulations before this Board is fully operational and which, on the advice of senior counsel, I read as not requiring me to follow the notice and comment procedure set out in section 7 of the Act. However, such Regulations were challenged before the Cape High Court, not because of their merits and contents, but on the basis of a different reading of section 52 of the Act, in accordance with which section 52 of the Act does not exclude the section 7 notice and comment procedure, but merely the requirement to obtain the advice of the Board prior to its coming into operation.
This latter interpretation was accepted by the Cape High Court, which ruled the Immigration Regulations to be invalid. However, because the Immigration Act came into force, Immigration Regulations were necessary as it would have been impossible to administer the Immigration Act with the old Regulations adopted under the Aliens Control Act. I also doubted the correctness of the decision of the Cape High Court. For this reason, I have appealed such decision to the Constitutional Court. Nonetheless, I immediately began implementing the decision of the Cape High Court and on March 14, 2003 I began the section 7 notice and comments regulation-making process. After the initial notice period, which is in your package of information, on April 22, 2003 I issued draft regulations for a period of public comments, which is closing soon. Depending on the outcome of the Constitutional Court case, I may be in need of requesting this Board to express its consultative function in respect of such draft regulations on the basis of urgency. Therefore, I request that each of the members of this Board begins applying his or her mind to this issue and I will liase with the Chairman should it be necessary for this Board to provide me with its advice on an urgent basis. Because aspects of this matter are somehow complex, I have requested my Ministerial Advisor to brief the Board on its background. I have also requested him to liase with the Board to decide on how to deal with the public comments which I have received and which, institutionally, are obviously to be directed to me and are for me to take into account and respond to.
It is also urgent for me to receive the advice of the Board in respect and for the purposes of Regulation 14(3) of the Immigration Regulations, which relates to the creation of regions for purposes of the administration and implementation of the Act. Historically, migration control has always been structured on a regional basis and the old Immigrants Selection Boards were also regionally based. In terms of our new reform, regions will carry the responsibility of issuing permits as the regional committees used to do in respect of permanent residence, but they will do so also in respect of temporary residence. This will enable our Head Office not to be concerned with any case or application, but concentrate its entire resources on policy formulation, capacity building, training and assistance to the regions in terms of monitoring the uniform application of the Act, building capacity, redressing corruption and, in general, trouble-shooting.
Regions will have not only the function of issuing permits but also that of enforcing the law in respect of illegal foreigners. My initial inclination would be that of designing initial regions which coincide with those of the Department of Labour, which will facilitate co-ordination both from the point of view of issuing work and corporate permits, as well as in respect of inspecting workplaces. I made a preliminary decision in this sense which I submit to you for your advice as a matter of utmost urgency so that it can be finalized at least as an interim measure until the time when this Board will have a greater opportunity to apply its mind to the issue and redefine any region. We also need to define regions abroad. In the past few months we have sent several of our officials to look at the status of regions abroad and to conduct training also in respect of Foreign Affairs officials. At this juncture it seems that we could demarcate the whole of North America as a region headed by a Regional Director, either in New York or in Washington, DC. Similarly, there is potential for regions to be demarcated in Europe with Regional Directors either in London or in Berlin. Obviously, each Regional Director so appointed will have the power to delegate functions to any Home Affairs official or mission in his or her territory and thereby ensure that permits can be issued from other venues under a common regional framework of management, supervision and co-ordination.
As this Board becomes more acquainted with the many issues of migration control, it will need to exercise its leadership to bring together the new function of border control, which, as I indicated earlier, will need to be the product of a harmonious co-ordination of many organs of State. I will organise a session for this Board to be briefed on the challenges of border control. We need to develop a long-term plan, which will unify the control of borders, not only in terms of land, but also marine border. In this respect, during a recent trip of my Acting Director-General and other officials to the United States, we developed a framework for co-operation with the US Department of Homeland Security, which includes border patrol, customs and immigration services. We are in the process of designing the funding of a project, which may enable us to receive the assistance of the US DHS to develop a long-term plan of border control co-ordinating existing agencies and organs of State.
Another urgent item on the Board's agenda shall be that of exercising the advisory function contemplated in section 3(1)(l) relating to the delegation of my powers under the Act. I have requested my Acting Director-General to submit to the Board a copy of the delegation instrument, which has been prepared for me by the Department. I wish to stress how, for the first time, the Act introduces the mechanism of performance -auditing tied to delegation. This is one of the many aspects in respect of which the Act aims at improving on the administrative structure of migration control. The Board will also need to prepare itself to exercise the consultative functions contemplated in section 22 of the Act relating to exchange permits, section 30 of the Act relating to the identification of undesirable persons, section 31 of the Act relating to the exemption of people or categories of people from the provisions of the Act and Regulation 28(3) relating to the possibility of changing the training fee tied to the quota system for the so-called section 19(1) permits. Down the road, the Board will be called upon to provide its advice to identify the need of providing special quotas of work permits for people who are particularly required by our economy and may obtain a permit even without a job offer in terms of regulation 28(4)(e) or in respect of the establishment of a new association of immigration practitioners in terms of item 2(2) of part A of schedule F of the Immigration Regulations.
We are at the time of the launching a new system of migration control with many features, which will need to be fully developed at a later time. What we now have is a basic system, if not a blueprint of what ought to be developed over time and with due consideration. In many aspects what we have is, admittedly, unsophisticated and it is meant to be tried and tested before we can fully understand and appreciate how it should be developed into something more complex and sophisticated. For instance, the training fee associated with work permits will, in all likelihood, be differentiated so as to reflect different categories of workers so as to differentiate between those who are more needed in respect of whom such fee can be lowered, and those who are less needed, in respect of whom such fee can be increased. However, even such exercise would require that we demarcate and delineate categories which make sense, not just in theory but that may be administered in the daily practice of migration control without increasing administrative burdens. My plea is that we try and test simple solutions before we attempt to complicate them.
In this respect I must plead with all the members of this Board to think in terms of migration control at all times. Each of the members of this Board comes from a different background and may be tempted to bring the features of his or her discipline within our discourse. It is essential that each of you studies very carefully the Immigration Act and its Regulations and understands the underlying features, concepts and reasons of the discourse of migration control, both from an administrative viewpoint as well as a legal one. There are things, which are relevant and important in other fields, such as the distinction between registered and unregistered institutions of learning or primary, secondary and tertiary schools, which may have no relevance in point of migration control. Similarly, there may be categories of workers, professions or skills which are easy to enunciate and talk about at the conceptual or academic level, but become very arduous to administer and verify in respect of concrete applications for work permits based on such categories. Therefore, my plea with officials of other departments who are members of this Board is to learn to think in terms of migration control when they make inputs in our discourse.
As we are at the beginning of a new system of migration control, one will expect that we will face greater difficulties than we expect. The work of this Board will be challenging and demanding during the initial period. Therefore, I must really urge all the members of this Board to consider their appointment seriously. This cannot be a secondary activity or a hobby. Serving on this Board requires commitment and dedication. I was inclined to request that all members of this Board serve on a full-time basis, but I then realized that this might not be absolutely necessary. Nonetheless, I would like to see at least a few of the members of this Board serving on a full-time basis or at least making the Board's activities their primary concern.
I have signified to my colleagues members of Cabinet, whose representatives are members of this Board, that their representatives ought to be fully dedicated to their activities on this Board and be released from other concomitant duties and responsibilities which may interfere with their service on this Board or prevent them from giving the full measure of time required. Obviously, I am not expecting them to work full-time for the Board and this will, of course, not be necessary. I just do not want this Board to become paralysed by people not being able to convene because diaries are to be co-ordinated on the basis of finding free days amongst other commitments. I have instructed my Acting Director-General to finalize contractual arrangements with the members of this Board who are not civil servants, which gives them the option to serve on a full-time or on a part-time basis, or to upgrade from one to the other. I know that some of the members already have prior commitments, such as those of Ms Willand, who is training for the Olympic Games, and our Chairman, Prof James, who has scheduled travel and commitments to the United States. I also know that members such as Mr Pokroy and Mr Watters have law practices, which need to be attended to. However, I hope that all of them can organise their commitments in such a way that the work of this Board will not suffer.
In terms of the Act and its Regulations, the Board can operate through its committees. I think it is important that as soon as possible the Board develops and implements a committee structure. Obviously, members who have interests and qualifications on matters such as work permits and their implications on labour markets, may have a lesser interest on issues of border control and vice-versa.
In addition to the advice that the Board is required to provide in terms of law and regulations in terms of the Act, the Board is required to provide me with advice on any matter, which, from time to time, I may table before this Board. I will liase closely with the Chairman to this end. At this juncture there are a few matters relating to regulation making which ought to be dealt with in specific terms over and above the general advice, which the Board may or may not give me in respect of the draft regulations, which I have published on April 22, 2003. The first issue is whether we should keep records of the entries and departures of our citizens. Most countries do not do so. My colleague, the Minister for Safety and Security, is urging an amendment of the regulations in this sense, while I received submissions aimed at protecting the right of privacy and arguing that such recording contravenes the Act. I will table before this Board the relevant documentation. The second issue relates to the exemption from visa requirements of Taiwan. My colleague, the Minister of Foreign Affairs, has requested an amendment of the present Immigration Regulation to impose again visa requirements on Taiwan. Also in this respect the relevant documentation will be tabled before the Board in due course.
In concluding my remarks I wish to express a sincere word of appreciation to all those who have enabled this process to reach this point, including the members of the Portfolio Committee of Home Affairs, and those of the Standing Committee on Social Services of Parliament. A special word of appreciation should go to Mr Lambinon who has been following this process since its inception with the Green Paper on International Migration. A word of appreciation must also go to my Advisor who was a member of the White Paper Task Team and has worked tirelessly to bring this reform into shape and reality. Obviously, a special word of appreciation goes to the Chairman of our Board who was the Chairman of the Green Paper Task Team and a member of the White Paper Task Team. By being the Chairman of this Board he represents the continuity and consistency of this process and I am sure that under his Chairmanship this process will now move forward to the intended heights of excellence and service.
I, myself, feel that an enormous burden is now off my shoulders. None of you can have the slightest idea of what has been involved in bringing this process to this point. I had to bear a great deal of humiliation and overcome difficulties and obstacles of all sorts, most of which are, and will, in all likelihood, remain untold. However, I now need to pass part of the responsibility onto you. I brought the process to this point. Now the process belongs to you and the people of South Africa. I have been inspired by no other desire than that of serving the needs and aspirations of the country I love. I have acted only under the mandates of a culture of service to my country. I remain convinced that liberal migration policies are an essential element to secure the long-term success of South Africa. It is now your responsibility to make this system work at its best and nourish it into adulthood. A new system has been born with great pain. As the midwife of this system, I now introduce it to those who have been charged with the responsibility of nourishing its growth. Understand, respect and nourish the needs of this new system and ensure that together we can enable it to provide its contribution towards making South Africa the country of economic prosperity and social stability, which we have always dreamed it, could become. May God grant you inspiration, wisdom and integrity as you carry out your functions?
With these words it gives me great pleasure to declare the Immigration Advisory Board of South Africa officially established and operational and to wish upon it the blessings and inspiration from God Almighty.
Issued by Ministry of Home Affairs
19 May 2003
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