With fears of xenophobic attacks in South Africa threatening once again, the Law Society of South Africa’s Immigration Law Committee vice-chairperson Chris Watters questions the Department of Home Affairs’ (DHA’s) ability to calm the situation, given that he believes that there are some department officials who have xenophobic attitudes.

“Some people in the department have the attitude of gatekeepers, who are responsible for keeping the hordes out of the country. This hardened attitude in the department contributes to xenophobia in South Africa,” he explains.

Watters recalls the shock of being asked by a senior DHA official why he always represented foreign nationals and not South Africans, as the official believed that “these people (foreign nationals) are going to come and pick this country clean”.

“The department has a statutory mandate to tackle the xenophobia challenge, and to reach out to communities and educate them, but if its own house is not in order, it is difficult to see how it is going to achieve this,” Watters says.

Further, he says that the two-year transformation plan of the department, allocated a budget of R1,2-billion, has obtained results in certain respects, but this is about the fourth time that the department is under- taking transformation since its launch in 1994.

Refugees in South Africa

Watters says that the word ‘refugee’, in terms of South Africa’s Constitution, refers to people who have fled their countries for political or religious reasons.

“The United Nations High Commissioner for Refugees (UNHCR) issued a report about refugee movements across the globe and South Africa has been named the largest recipient of refugees in the world. Last year, we had about 500 000 people apply for refugee status, with two-thirds from Zimbabwe. The figure only refers to the number of people who have made a formal application for refugee status,” he explains.

The UNHCR report highlights the massive social cost implications experienced by South Africa as a result of the Zimbabwe crisis.

Watters says that this financial burden should encourage government to act on the Zimbabwe crisis because the department’s refugee infrastructure is battling to absorb the inflow of refugees. In addition, the number of Zimbabweans perceived to be moving to South Africa could also be a driving factor in the increase of xenophobia, as it is the basis for myths, such as foreign nationals stealing jobs from locals, he adds.

However, undocumented Zimbabwe migrants, whose numbers are estimated to range from a couple of hundred thousand to several million, play a significant role in contributing to the country’s economy.

“If you removed all of the undocumented foreign nationals from the country, it would have a significant effect on gross domestic product. One of the benefits of issuing three-month visitor permits, to Zimbabweans in particular, is that the DHA is able to track their movements. Through this, the department has noticed that the economic migrant, who is often mistakenly termed a refugee, does not stay in South Africa, but moves between South Africa and Zimbabwe, while trading goods from each country,” says Watters.

Delayed Amendment

Meanwhile, the Immigration Act, No 13 of 2002, was amended in 2006 and has yet to come into effect.

“The principal aim of this amendment was to bring the current Act in line with inter- national best practice, especially with regard to the transfer of employees from a company’s foreign office to its South Africa-based office. Currently, an employee is only allowed to remain in the country for a single two-year period of deployment. The current Act does not permit the DHA to extend or renew a transfer permit to allow a transferred individual to work in the country for more than two years. Most transfers, in terms of international best practice, seem to last four or five years.

“This prompted the amendment of the Act to tackle the two-year transfer limit, but regulations are needed to implement the Amendment Act. The new regulations must be approved by the DHA Minister’s Immigration Advisory Board, which was disbanded by the Minister. A new board has been appointed and is only now meeting to discuss these regulations.

“The department is hoping that the amendment will come into effect this year, but it is already working on another amendment concerning other issues, which have not yet been made public,” explains Watters.

After the 1994 elections, previous Home Affairs Minister Mangosuthu Buthelezi oversaw the development of a White Paper on immigration policy.

“But that was based on a different South Africa and economy,” says Watters.

He believes that, while no one would lobby for an open-door immigration policy, South Africa is in need of an urgent rethink of immigration policy to align with the country’s standing in terms of its diplomatic and trade orientations in Africa and the country’s South–South focus. South Africa is also competing with similarly placed economies, which offer incentives for much-needed scarce skills. For example, in other countries, a work permit application can be lodged electronically or take 72 hours to be adjudicated, while in South Africa it takes 72 days or more to approve a work permit.

Effect of Recession on Immigration

Watters says that, on the back of a recession, people who are on contract in foreign countries are the first ones that are at a disadvantage and are sent home.

“Most of the major economies have cracked down by implementing stricter immigration regulations. Australia and the UK have decreased the categories on its scarce skills list, with the same applying in the US and Canada. Frequently, the kneejerk reaction to a recession is to first find jobs for a country’s citizens, before finding jobs for foreign nationals,” he explains.

This is based, to some extent, on a number of misunderstandings of how immigration works, as it is assumed that a country has a pool of similarly skilled people to draw from, and is employing a foreign national instead. However, this is not the case, as employing a foreign national is an expensive exercise and applies to higher-skilled sectors, Watters says.

However, if it were not for the illegal migrants, such as Mexicans employed by the Californian agricultural sector, in the US, seasonal crops would not be picked. Everyone ignores the benfits of illegal migrants, because many categories of locally unpopular work would not be done without them.

In South Africa, undocumented migrants are largely employed in the agricultural and mining sectors.

Watters claims that the agricultural and mining unions say that they cannot get South Africans to work in these positions.

However, it is difficult to establish whether the working conditions in these sectors deter South Africans, or if these industries, in fact, are paying undocumented migrants less money than they would a South African employee.

“One of the requirements for a general work permit is that the employer needs to submit proof that the salary being paid is compatible with what a South African would be paid for the same job,” says Watters.

He believes that immigration is misunderstood in South Africa because, when looking at Federal Reserve Bank reports, it is clear that encouraging immigration increases the supply of much-needed skills and other categories of labour, while simultaneously decreasing the cost of labour.

The DHA was unable to provide a response to Polity at the time of going to press.