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Date
: 19/08/2004
Source: Ministry of Home Affairs
Title: N Mapisa-Nqakula: Immigration Amendment Bill
SPEECH BY THE MINISTER OF HOME AFFAIRS, MS N.N. MAPISA-NQAKULA, MP,
INTRODUCING THE IMMIGRATION AMENDMENT BILL 2004, National Assembly,
Cape Town, 19 August 2004
Madam Speaker
Honourable Members
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 Speaker, 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
been clarified. For example, the definition of 'spouse' will be
brought into line with a Constitutional Court judgement on this
issue and will include permanent heterosexual and homosexual
relationships as prescribed. 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;
and both the Minister and the Director-General may delegate any of
their functions and powers under the Act, except for some of the
Minister's powers, which have been specifically excluded.
The principal Act provided for the establishment and composition of
an Immigration Advisory Board. The relevant sections will be
amended to make provision to include representation of the National
Intelligence Coordinating Committee, and the Department of Justice
and Constitutional Development on the Board, and to change 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.
The amendments provide that the Minister is no longer required to
solicit public nominations for the civil society representatives on
the Board; rather the amendment allows for the appointment of one
representative of organised labour and one representative of
organised business. The Minister is also able to appoint 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. Likewise,
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. However regulations will be published for
public comment. In response to concerns raised by the State Law
Advisers that a number of the existing regulations are ultra vires,
the amendments now include a list of matters on which the Minister
may make regulations.
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 of 2000. 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 under the Skills Development Act, 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 reference in the Act to courts will now
be to magistrate's courts for criminally-related immigration
matters, with judicial review remaining in the hands of the High
Court.
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 will be inserted in the principal Act
that will deal with visas and transit visas. These will set out the
circumstances under which a foreigner is required to have either a
visa or transit visa. 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, a new clause
introduces an asylum transit permit, which is to be valid for 14
days. This will enable an asylum seeker to report in person to a
Refugee Reception Office within that period, to apply for an asylum
seeker's permit in terms of the Refugees Act, 1998 (Act No. 130 of
1998). This will clearly distinguish asylum transit permits from
asylum seeker's permits. If the 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. We recognise the need to address legislative and
operational issues in dealing with asylum seekers in the
future.
A schedule to the principal Act (which had not yet come into
operation) had the effect of amending the Refugees Act, 1998, in
effect replacing the Refugee Appeals Board with the Immigration
Court. This has been repealed, so that there is no impact on the
Refugees Act. Amendments will make it possible for the
Director-General to withdraw a permanent residence permit the first
time a holder is convicted of any serious offences provided in
schedules to the Act, and the provision that takes away this
sanction after a permanent resident has been in the Republic for
four years will be done away with. 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.
A further amendment provides that anyone found in possession of a
fraudulent residence permit, passport or identity document is
regarded as a prohibited person and therefore does not qualify for
a temporary or permanent residence permit, a visa or admission into
the Republic. 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 Speaker, 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 would also like to thank
my colleagues in Cabinet and members of their departments for their
helpful comments and insights given at such short notice. 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.
Thank you
Issued by: Ministry of Home Affairs
19 August 2004
Source: Department of Home Affairs
(http://www.home-affairs.gov.za)
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