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)
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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