|Admitted as an attorney in 1985 Chris Watters practices exclusively in the field of immigration law. Chris is the Vice-Chairperson of the Immigration Law Committees of the Law Society of the Northern Provinces and the Law Society of South Africa. He is a member of the SA Law Reform Commission's project team on immigration law and is a former member of the Immigration Advisory Board. He is a member of the US-based Association of Business Immigration Lawyers [www.abil.com]. Chris Watters Attorneys [firstname.lastname@example.org] assists in all aspects of temporary and permanent residence permit applications, immigration enforcement ‘disputes' and refugee law matters.|
The Department recently presented its latest Amendment to the Immigration Act against the background of the Zimbabwean amnesty which media reports describe as pointing to a new policy on migration.
A DESPERATE NEED FOR A FORMAL IMMIGRATION POLICY RE-THINK
A hallmark of the country's immigration policy has been the haste with which legislation has been tabled by the Department and passed in the past seven or eight years. Whilst the White Paper on Migration was tabled after what can only be described as an extremely thorough consultative process, the day the Immigration Act was passed by Parliament in 2002, the then Minister announced that it was deeply flawed and already needed to be amended. An Amendment was literally rushed through from start to finish in a matter of months in 2004 and came into operation in 2005. But that was immediately seen to be flawed and an amendment was driven through Parliament passed in 2007 - but again after a very brief consultative process. However that 2007 Act has yet to come into operation!
And now the current Bill seeks to amend that and the earlier Amendment - and to wade into critical debates about the importation of skills without there being the benefit of the 1999 White Paper being re-thought with input from stakeholders.
A remarkable feature of the Bill is the concession in the Memorandum that there has been no consultation on the Bill - even if the few stakeholders that had been spoken to thought they had been consulted. This is truly a case of the tail wagging the dog!
What is the country's national immigration policy? Currently the closest we come is in the Preamble to the 2002 Immigration Act which collects a series of largely prudent statements based to some extent on the White Paper. To date, there has been no significant tinkering with the wording of that Preamble.
However there is an increasing void between key provisions of that Preamble on the one hand and a number of provisions of the current Act, provisions of the 2010 Bill and Department practice, on the other.
Thus for example, the Preamble provides that "economic growth is to be promoted through the employment of needed foreign labour, foreign investment is facilitated [and] the entry of exceptionally skilled or qualified people is enabled ..." and "the South African economy may have access at all times to the full measure of needed contributions by foreigners."
SIGNIFICANT NEW ENTRIES IN THE 2010 BILL:
Why does the Department propose in the 2010 Bill that permits for the "exceptionally skilled" be scrapped altogether? Why would it require that in order to extend their current permits, the foreigner and his or her family have to pack their bags, return to their country of origin, apply for the extension back home - which may be at an Embassy far from the foreigner's home, and await the outcome before returning to South Africa (if approved).
Why does it propose that these foreigners we need must take time off from their jobs to travel to and stand in queues themselves at the Embassies or regional offices - as is best practice internationally?
Why has it been deemed necessary to scrap the exchange permit that allowed the country to attract and to sell itself to young skilled persons even if only as a tourism destination?
Why does the Department proposed to limit foreign investment to only those companies falling with sectors of the economy prescribed to be of strategic interest when the Minister of Trade and Industry tells his Botswana counterpart that we do welcome foreign investment.
And why is the Department offering unskilled workers from Zimbabwe a better and speedier deal on temporary permits that it does to skilled persons who are badly needed by the companies.
The Bill also requires that minors, whether infants or other, will not be allowed to enter the country unless they are travelling on their own passports - and not the passport of one or other of their parents, as still happens.
The Bill - in what is perhaps the only real development in immigration policy - proposes a radical increase in criminal and administrative penalties for contraventions of the Act including for overstaying. One challenge here is that as we have seen in recent months, people can find themselves overstaying without there being any fault on their part whatsoever and due entirely to poor planning on the part of the Department.
STRANGE BUT WORRYINGLY TRUE:
Under the heading of ‘strange but true' there are two significant entries in the Bill.
The first requires all ‘conveyances' [methods of transport, to you and me] to transmit electronically to the Department, the details of all passengers before the carrier departs for the Republic. A problem here is that the term "conveyance" includes not just ships and planes but taxis and "any other means of transport". So, the long distance taxi loading up in Harare or Maputo will need to transmit its list of passengers and other "prescribed information" - electronically - to the Department before it leaves!
The second is very disturbing and smacks of ‘Big Brotherism.' The duty to disclose in advance, the list of passengers on a flight will extend to internal flights too. The Bill proposes that this is required "for the better achievement of the objects of this Act" which does not tell us why it is needed or what interest Home Affairs could possibly have in such information and what it would do with that information.
AND SIGNIFICANT OMISSIONS?
But so much for what the Bill does deal with. What about the ongoing shortcomings in the Bill that the Department has not seen fit to propose correcting?
Over a decade ago the Constitutional Court directed the Department to resolve the matter of the rights of foreign spouses of South Africans in existing relationships. The current Act still does not properly capture those directions and the Bill makes no mention of these omissions.
The Bill continues to leave the estranged foreign spouse dangling in the wind and at the mercy of either the former South African spouse or the principal permit holder. If the foreign spouse needs to stay in the country to be with the couple's children, to work if needed (particularly if he or she is not skilled) or even merely because he or she has spent many years living here and putting down roots, there is simply no convenient category of permit in the Act.
Last week Deputy Minister Gigaba was reported as saying that the Bill dealt more with permanent residence than temporary residence. However, the current Act provides that if a person has been on a work permit for five years, he or she qualifies for permanent residence. However, they cannot include their families in those applications. The families must await the outcome of that application and then apply for permanent residence on the basis of their newly-found familial relationship to a permanent resident. If you qualify for permanent residence because you have a prescribed scare skill, you can include your family in that application. And if you are self-employed, you qualify to apply for permanent residence - and, again, you can include your family in that application. But if you qualify for permanent residence on the grounds that you are retiring here, you cannot include your family. Nor can you include them if you are deemed to be exceptionally wealthy - they too must wait for you to get your permanent residence and then they need to apply as relations of a permanent resident. There is simply no logic to this arrangement but there is no suggestion that it will be corrected any time soon.
This Bill points to having been drafted by narrow sectoral interests within the Department without regard to national or international policy parameters or the needs of other Departments.
A significant number of provisions and omissions suggest that Parliament is being asked instead to intervene to patch over administrative shortcomings; why else ban the immigration agents rather than subject them to proper training and regulation? Suspicions continue to linger that some of the underlying logic is motivated by xenophobic thinking within the Department, despite its multi-billion Rand series of makeovers.
Coherent immigration policy, and legislation reflecting such a policy, is central to ongoing economic development in South Africa. If this Bill is to be taken through Parliament without the benefit of the country getting - and inputting to - a new immigration policy, then let's not rush this Bill through Parliament.
This only makes more work for the Courts. And the only victims will be companies trying to work with the system and persons who might have been employed by companies that will no longer come here.
Friedrich Nietzsche reportedly said that "one will rarely err if extreme actions be ascribed to vanity, ordinary actions to habit, and mean actions to fear." The importance of a properly managed immigration policy demands that we have the courage to step back from adopting "mean actions" driven by our irrational fears of the unknown.
Written by: Chris Watters