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Date
: 26/08/2004
Source: Ministry of Home Affairs
Title: M Gigaba: Immigration Amendment Bill
SPEECH BY THE HON MKN GIGABA, SOUTH AFRICA'S DEPUTY MINISTER OF
HOME AFFAIRS, INTRODUCING THE IMMIGRATION AMENDMENT BILL, 2004, TO
THE NATIONAL COUNCIL OF PROVINCES, Cape Town, 26 August 2004
Madam Chair
Honourable Members
In the past few weeks we have been in and out of this esteemed
House to present to you several Bills that needed to be finalised
through the Parliamentary process as a matter of urgency. From the
onset, I would like to thank Honourable Members for your
understanding, cooperation and support that has made it possible
for us to finish much of the work relating to our outstanding
pieces of Legislation. This level of understanding has meant even
more to us at Home Affairs, particularly because we are engaged in
an important process to turn around the Department.
Chairperson,
The President of the Republic of South Africa, in his State of the
Nation Address at the opening of the third democratic Parliament,
committed government to finalising the Immigration Regulations
within three months.
However, it soon became clear as we started this process that it
was not going to be possible to address the problems identified in
the draft Regulations without effecting certain changes to the
principal Act.
At this stage the Department of Home Affairs had been working with
the principal Act and interim Regulations for just over a year, and
shared the view of the Chief State Law Advisor that urgent
amendments were necessary to correct fundamental flaws in the
principal Act. Madam Chair, a sound immigration policy is vital to
the country for a number of reasons. Such policy should facilitate
economic development, attract foreign skills and investment and
reflect our commitment to human rights and the security of those
who live within our borders, both citizens and residents. Our
immigration policy should be consistent with our foreign policy
objectives, particularly with regard to SADC and the continent; and
consistent with our commitment not to discriminate on the basis of
gender.
In the medium term Government intends developing and refining its
immigration policies. This Amendment Bill and the regulations,
which will follow, represent a short-term intervention.
Nevertheless we have consulted extensively in the short period
afforded us. The Amendment Bill contains a number of drafting and
technical amendments. Here I outline some of the more noteworthy
and progressive changes that will make the principal Act more
user-friendly and equitable.
The Preamble has been amended to properly reflect the purpose of
the Act, and to emphasise the need for the country to attract
scarce skills; the role of the Government in the development and
growth of the region and continent. A number of definitions have
also been clarified. The definition of 'marriage' and 'customary
marriage' will be brought into line with existing
legislation.
Instead of 'powers of the Department', in terms of the replacement
section the Minister retains executive powers, and the power to
take administrative decisions is vested in the Director-General.
The principal Act provided for the establishment and composition of
an Immigration Advisory Board. The Amendment Bill provides for the
inclusion of the National Intelligence Coordinating Committee, and
the Department of Justice and Constitutional Development on the
Board, and changes the name of the Department of Finance to
National Treasury. This amendment requires that representation be
at Deputy Director-General level, which will ensure accountability
at a sufficiently senior level. As far as the representation from
civil society is concerned, the Minister will appoint one
representative of organised labour and one representative of
organised business, as well as up to five members of the Board on
the basis of relevant expertise. The operations of the Board will
be prescribed by regulation.
Amendments to the principal Act reflect the advisory nature of the
Board, and emphasise the role of the Board in facilitating
interdepartmental co-operation on immigration matters. The section
that mandated the Director-General to establish a liaison committee
of departments involved in border control will be repealed, as it
is felt that existing forums already serve that purpose.
A new section dealing comprehensively with regulations will remove
the cumbersome requirements concerning public comments, which
required the Minister to respond to each comment in footnotes to
the regulations. The Minister will however, under any normal
circumstances still be required to publish the Regulations for
public comment, including consultation with the Immigration
Advisory Board.
Amendments have been made to Section 8 of the Immigration Act to
streamline the process of internal appeals and reviews of
administrative decisions taken by officials in the Department, and
to bring it into line with the Promotion of Administrative Justice
Act. In order to bring the principal Act in line with other
legislation, powers or functions are attributed to the
Director-General and not the Department, as is currently the case
in the principal Act.
As the legal mandate to levy fees such as the Training Fund under
the principal Act falls under the Department of Labour, this
provision will be deleted.
The requirement for a Chartered Accountant certificate has been
removed from the Act. Foreigners or employers will now have to
prove certain matters to the satisfaction of the Director-General,
which may include the submission of a chartered accountants
certificate. These will be specified in the regulations. This
reflects our conviction that the implementation of immigration law
and policy should not be privatised and should always fall under
the mantle of government. While we recognise the expertise of
chartered accountants in assessing complex financial matters, we
believe it is not appropriate, for example, to hand them the
responsibility of evaluating labour standards and agreements.
While immigration law is a specialised field which requires
specialised expertise, it is not appropriate to legislate such
courts, and the reference to immigration courts will be removed
from the principal Act.
The principal Act prohibited the recording of entry into and
departure from the Republic of citizens. In response to concerns of
Statistics South Africa, the Reserve Bank and the South African
Police Services, among others, an amendment will provide for such
recording. Two new sections deal with visas and transit visas. This
will simplify the process of determining which countries are
visa-exempt and enable proper consultation by the Minister with
other governmental stakeholders.
While the principal Act provides for an asylum permit, the
Amendment Bill refers to an asylum transit permit, which is to be
valid for 14 days. This will enable an asylum seeker to report in
person to apply for an asylum seeker's permit in terms of the
Refugees Act. If the asylum transit permit expires before the
holder has reported to a Refugee Reception Office, the holder
becomes an illegal foreigner and will be dealt with as such in
terms of the principal Act. This amendment is designed to protect
bona fide asylum seekers, while at the same time discouraging abuse
of the process.
Amendments to the principal Act will require a foreigner married to
a South African citizen or permanent resident to wait for a period
of five years before being able to apply for permanent residence on
the basis of the marriage. Foreign spouses will be entitled to a
temporary residence permit, which will allow them to work and
study. Amendments requiring that police officers or immigration
officers interview any person whose status is in doubt, before
taking such person into custody, will ensure that the rights of
citizens and non-citizens alike will be respected.
Madam Chair, I would like to close by thanking all the officials in
my Department who, together with the State Law Advisors, worked so
hard on these amendments, and who are poised to ensure that
regulations are published without delay. I am sure that you will
all agree that these amendments will improve and streamline the
operation of immigration management and control, as well as provide
a basis for transparent and workable regulations as promised by the
President.
I present Immigration Amendment Bill, 2004 for your
consideration
Thank you
Issued by: Ministry of Home Affairs
26 August 2004
Source: Department of Home Affairs
(http://www.home-affairs.gov.za)
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