|
[ Home ] [
Documents ] [ White Papers ]
White Paper on International Migration
Presented to The Minister of Home Affairs
DR Mangosuthu
Buthelezi
by A.S. Mokoena
Chairperson of The Task Teamon
International Migration on Behalf of The Task Team
As modified and approved by Cabinet Pretoria : March 31, 1999
- 1 -
- Executive Summary - The tenets of a new immigration policy for South Africa
In this White Paper administrative and policy emphasis is shifted from
border control to community and workplace inspection with the participation of communities
and the cooperation of other branches and spheres of government. Procedures related to the
issuance of permits are simplified to shift resources towards enforcement.
An Immigration Service [I.S.] is established with monitoring and
investigative capacity at community level. An Immigration Review Board will also be
established with certain functions. Inter alia, such an I.S. should:
- conduct inspections in schools, workplaces and service providers to ensure compliance
with temporary permits;
- detect, track and act against temporary permit violators and other illegal aliens; and
- interface with the proposed immigration courts and border control patrol.
An up to three months with the possibility of a once-off renewal entry
permit will be available to non-prohibited persons who hold a visa or upon production
of a return ticket or its equivalent in respect of cross border entries or upon financial
guarantees as prescribed. This permit will accommodate tourists, short-term students,
businessmen, work-seekers, traders, medical treatment recipients and people in transit,
thereby eliminating the need for different classifications.
[ Top ]
Temporary residence permits will be provided for staying longer than
three months as follows:
- Student permit on the basis of documentation issued by places of learning which will
remain responsible for keeping the I.S. informed by means of routine reports;
- Work permit on the basis of the need of the employers and upon certification that
all labour conditions, including collective agreements, are complied with and that either
a prescribed payment is made into a national training fund or special training for
citizens, as prescribed, is provided;
- Exceptional skill or extraordinary qualifications permit issued upon a discretionary
assessment by the I.S. upon documentation provided by the applicant
- Diplomatic corps and foreign authority permit issued on the basis of documentation
of the Department of Foreign Affairs;
- Exchange person permit issued on the basis of documentation of the organ of the
State responsible for the exchange programme, which will also monitor the compliance of
such persons and inform the I.S.;
- Treaty person permit related to international treaty obligations issued on the basis
of documentation of the Department of Foreign Affairs or the organ of the State
responsible for the implementation of the treaty, which will monitor the compliance of
such persons and inform the I.S.;
- Investor and self employed person permit
issued on the basis of certification by an
accountant that the prescribed sum invested in the country is part of the business
book value;
- Crewperson permit issued on the basis of documentation provided by the owner of the
vessel who will remain responsible for the crewpersons compliance. This permit may
be issued upon acceptance of restriction of the portion of the territory in which the
alien may move;
- Relatives permit issued to people within the third step of kinship of a
citizen or the second step of kinship of a permanent resident on the basis of financial
assurance provided by the citizen or the resident concerned; and
- Medical treatment permit to be issued for long-term treatment on the basis of
documentation issued by the relevant medical institution who shall routinely report to the
I.S. about its long-term foreign patients.
The foregoing permits extend to the applicants spouse and
children younger than 21.
Corporate work permits may be negotiated between the I.S. and the
employer who administers the allocated number of its employees as it sees fit and remains
responsible for the compliance and repatriation of aliens. This permit will be available
in respect of:
- foreign investors who provide for job opportunities and/or training for citizens;
- seasonal workers;
- industries who cannot find local labour; and
- industries authorized to rely, or continue to rely, in consultation with the Department
of Labour, on foreign labour.
[ Top ]
Permanent residence permits are available for
- spouses of citizens and their children;
- those who have held a temporary work permit for five years;
- those in possession of an offer of permanent employment subject to the requirements set
forth by Nedlac and the Department of Labour;
- investors, on the same basis as the granting of temporary permits;
- people of exceptional skills or extraordinary qualifications or business owners if this
is in the national interest;
- applicants with an offer of permanent employment on the basis of an independent
certification that no citizen is available to fill the job position and within a maximum
number determined by Nedlac for each industry sector; and
- children of citizens who do not wish to acquire citizenship.
The foregoing permits extend to the applicants spouse and
children younger than 21.
The enforcement of the migration system will rely on the following
aspects provided for in statute or prescribed:
- the status of recipients of public services must be checked by all authorities rendering
such services, who must report any illegal alien to the I.S.;
- the I.S. should conduct an awareness campaign in countries of origin and negotiate with
foreign governments to secure their cooperation and to investigate smugglers of aliens;
- effective enforcement of stricter sanctions against employers who employ illegal aliens;
- specialized immigration courts;
- specialized investigative and monitoring capacity;
- deportation process based on an entirely judicial process not open to interferences;
- an interdepartmental committee will be established to coordinate law enforcement and
community action.
- an additional security service with professional and specialized but limited
investigative and enforcement capacity in respect of illegal aliens and border control,
possibly including coastal patrol.
[ Top ]
The classification of prohibited persons and the discretionary powers
of the Minister and the I.S. will be adjusted to reflect present-day needs and
circumstances.
The Immigration Selection Boards will be abolished and an Immigration
Review Board established. Naturalization is provided for after five years of permanent
residence, un-interrupted by absence exceeding two years.
- 2 -
Acknowledgements
The White Paper Task Team on International Migration would like to
acknowledge the contribution of :
- the Parliamentary portfolio committee on Home Affairs;
- The Regional Directors of Home Affairs who contributed to the organization of public
hearings in each of the provinces;
- all those who have submitted written comments or oral inputs during the public hearings;
- the many officials of the Department of Home Affairs who have often provided inputs on
an informal basis;
- the members of the Task Team who drafted the Green Paper on Migration and set the
foundations for this White Paper.
- The Government of the United States including the US Immigration and Naturalisation
Service, with a special acknowledgement for the personal contribution provided by the INS
Johannesburg liaison officer, Ms Phyllis Coven; and
- IDASA for the services of its Executive Director.
[ Top ]
- 3 -
Background
- On May 13, 1997, a draft Green Paper on international migration was published in the
Government Gazette by the Department of Home Affairs for general information and comment
from interested parties. The Department of Home Affairs received comments from 52
individuals and organizations.
- The Minister of Home Affairs appointed a Task Team to consider the comments and draft a
White Paper. The Task Team was chaired by the Director General of the Department of Home
Affairs, Mr AS Mokoena and consisted of Mr D Chetty (NEDLAC), Dr W James (IDASA), Mr D
Lewis (NEDLAC), Mrs NW Madikizela-Mandela, MP (ANC), Dr PM Matlou (Home Affairs), Adv. PK
OMalley, MP (IFP), Dr MGR Oriani-Ambrosini (Ministerial Advisor), Mr C Schravesande
(Home Affairs), Mr M Tlhomelang (Home Affairs), Mr AF Tredoux (Home Affairs), and Dr SH
Buthelezi (ANC).
- During its first meeting in May 1998 the Task Team was briefed by its Chairperson, on
behalf of the Minister of Home Affairs, on its parameters and terms of reference.
Inter
alia, such parameters and terms of reference included
- the Task Team would not be bound by the findings, recommendations and
policies set forth in the Green Paper, which could be taken forward, reconsidered or
altered on the basis of the comments received or additional different findings made, or
opinions reached, by the Task Team;
- the Task Team would not deal with the issue of refugees, which was addressed
through another policy formulation exercise leading to a separate White Paper and Bill;
- the White Paper should be inspired by practical considerations rather than
by theory alone and should serve as a guideline capable of being immediately translated
into the required legislation, if any, and transformed into administrative practices
supported by the relevant structures and operating within existing budgetary and logical
constraints, including the scarcity of human resources;
- policy formulation is a process conducted by reconciling the following two
conflicting considerations. On the one hand policy is a fluid process which must respond
to the needs and circumstances of the present which, when they change, determine the
change of policies. Therefore, policies should not be the product of speculations on what
may happen in the future under ideal circumstances. On the other hand, policies should
ensure that any structure of government or legislation set in place in their pursuance are
sufficiently durable and long-term in nature so as to justify the financial and
administrative cost of establishing, maintaining and implementing such structures or
legislation;
- consideration is also to be given to the policy guidelines submitted by
Cabinet to the Task Team which drafted the Green Paper; and
- the work of the Task Team should be finalised by the end of October, 1998.
[ Top ]
-
Following on the Green Papers
recommendation that a distinction be drawn between refugee protection, regarded as a human
rights issue, and immigration, which is the effort to regulate population movement, a
separate White Paper on Refugee Protection was published in May 1998 and legislation based
thereon was presented to Parliament in November 1998 and adopted in December 1998.
- 4 -
Preliminary considerations
- South Africa has recently moved away from a history of isolation. In this we have joined
countries in Eastern Europe, South America and East Asia in leaving behind an existence
sheltered from the growing pressures of globalization, in particular the movement of
capital, technology, information and population. Since 1990, and particularly since 1994,
South Africa has faced increased tourist traffic, refugee flows, heightened business
immigration interests and an increase especially in illegal immigration. These are the
features of globalization in the late 20th century, which countries everywhere
have difficulty managing and regulating.
- Ill-prepared by apartheid to grasp and cope with the consequences of globalization, we
have been relatively slow in developing policy responses to immigration and international
migration. Although some improvements were made to the Aliens Control Act, 1991, we still
have immigration policies rooted in the past. The challenge for South Africa is to
formulate policy that takes advantage of the positive aspects of globalization, including
the unprecedented movement of people with skills, expertise, resources, entrepreneurship
and capital, which will support the countrys efforts at reconstruction, development
and nation-building.
- This White Paper accepts the spirit of the Green Paper, which is to strike a balance
between liberalization of immigration policy and necessary government regulation in the
interests of domestic communities. It seeks, therefore, to let people who add value to our
society in and to keep those that do not, out. We believe that this can and must be done.
The people who can add value to our growth and development are those who invest, are
entrepreneurs and promote trade, those who bring new knowledge and experience to our
society, and those who have the skills and expertise required to do the things we cannot
properly do at this stage. Such openness to the world should be welcomed.
- At the same time, our history has been disadvantageous to sections of our population,
excluding them from participation in the skills and educational market. There should
therefore be affirmative action in immigration, in the sense of compelling all employers
to search for suitably qualified South Africans first and to invest in their training and
development. There is also a hierarchy of interests to be considered. Our obligations are
to serve our people first; the people of the region and the member states of the Southern
African Development Community (SADC) second; the people of Africa third; and the rest of
the world last.
[ Top ]
- 5 -
The existing policy framework
- In considering its work, the Task Team addressed the preliminary question of
the existing relevant policy framework relating to migration within the broader set of
policies adopted by the GNU. It was noted in the Green Paper that the policy framework
provided for the Government of National Unity by the Reconstruction and Development
Programme does not give precise guidance on how to formulate migration policies.
-
Indirect guidance could be found in other
policy frameworks developed by the GNU, such as its macro-economic plan and the GEAR
strategy developed to implement it. However, the input of this policy instrument on the
specific issue of migration is not unequivocal. For instance, one could argue that the
objectives of GEAR could be best achieved by the maximum possible limitation on the entry
of any migrant other than tourists and business persons, so as to reduce the number of
people to whom government needs to supply services and for whom the economy needs to
provide. Conversely, one could also argue that the GEAR strategy calls for a policy of
relaxation of border controls so as to induce as many people as possible to relocate to
South Africa who have the skills or the capacity of making a contribution towards the
countrys economic growth. However, there are some firm elements associated with the
macroeconomic policy which have a bearing on migration policy1:
we should
- attract foreign investments, especially as fixed capital investments or
employment producing enterprises;
- assist the tourist industry, in respect of which South Africa has a competitive world
advantage;
- facilitate international trade and commerce;
- recognize the informal sector and allow some controlled cross border movement of traders
who benefit it; and
- attract foreign skills and entrepreneurial energies.
- Moreover, in their respective policy-making exercises some of the other
Governments departments have received the benefits of the guidance of policies
entrenched in the Constitution. However, in respect of migration, the Constitution does
not spell out any precise duty or mandatory policies but operates as an outer limit on how
government may pursue its chosen policy. For instance, the Constitution would not have a
bearing on the policy decisions of how many temporary or permanent aliens are to be
allowed into the country and the criteria for their selection or qualifications, but it
prescribes that once such aliens, however chosen, are in South Africa they must receive
certain protections of the law.
[
Top ]
-
Furthermore, whilst one acknowledges that the
transformation of South Africa from apartheid to democracy is the event with the greatest
significance on any process of policy formulation conducted in the past five years, the
Task Team could not determine the import or impact of this event on the shaping of the new
migration policies. In abstract, the migration policies of the old South Africa could work
for the new one once the existing legislation fully complies with the Constitution and the
administrative practices developed under it do not unfairly discriminate against certain
aliens on the basis of origin, ethnicity or religion.
- Population control policy also affects migration policy. Countries with an insufficient
population basis, such as Canada and New Zealand, have adjusted their respective
immigration to attract additional permanent residents, while those with excessive
population will discourage additional permanent settlement. In its policies, the
Department of Welfare has acknowledged that our present population and its projected
growth at the present growth rate are such that one can consider that the South African
population cannot be supported by the countrys available resources. The Department
of Welfare has stopped short of developing a population control policy. Immigration is
already a cause of population growth, and one should assume that our migration policy
should reflect the notion that further population growth through migration is not
desirable.
- Finally, insufficient guidance could be found for the formulation of migration policies
from any other of the governments major policies, such as those striving for the
transformation of the state, affirmative action, the redressing of present social and
economic imbalances and past social injustices or the so-called black empowerment
initiatives.
Therefore, in the absence of a pre existing framework for policy
formulation, the Task Team had to face the challenge of determining its own framework.
[ Top ]
- 6 -
The need and parameters for a new policy
- A simple way of determining the proper framework for a new policy is to assess how and
why the existing one is regarded as insufficient, inadequate, erroneous or flawed.
Therefore, the Task Team asked itself why the present policies and legislation should be
changed and whether the required changes merely require minor amendments to the present
legislative or administrative framework or, instead, call for their complete
reformulation. This stage of problem identification was assisted by public hearings.
1.1 Furthermore, the Task Team assessed whether some of the
inadequacies perceived by the public are the product of faulty legislation and policies
rather than inadequate administrative practices or adverse circumstances outside the reach
of governments means or control. For instance, in theory, one could reach the
conclusion that the lamented excessive number of illegal immigrants in the country is not
caused by defective policies or legislation and that the current laws are adequate. In
this case the problem would not be solved by merely redrafting the law or restructuring
governments functions within the parameters of the existing budgetary and logistical
restraints and limitations. In formulating its policies, the Task Team has investigated
where it is necessary to intervene to solve the identified problems.
2. The most immediate and somehow simpler level of policy formulation
relates to ensuring that the Aliens Control Act [ACA], as amended, complies with the
Constitution and the supervening legislative changes. In order to do so, one of the most
relevant questions relates to the applicability of the Constitution to people who are
neither residents nor citizens of South Africa.
[ Top ]
Constitutional review
2.1. A first reading of the Constitution could suggest that the
Bill of Rights gives clear guidance, for at times its provisions apply to "any
person" and other times to "citizens" only2.
However, upon further analytical scrutiny, it is clear that one cannot categorically state
that all constitutional provisions relating to "any person" apply equally and to
the same extent to aliens illegally in the country as they do to residents and citizens.
The Task Team felt that it was beyond the scope of its work and expertise to draw the
precise line which may differentiate the position of each of such classes of people under
the Constitution, which task would need to rely on the evolution of constitutional
jurisprudence over time.
2.2 However, this White Paper recognizes that there is no
constitutional basis to exclude in toto the application of the Bill of Rights
because of the status of a person while in South Africa, including illegal immigrants. In
fact, even though the Bill of Rights contains a limitation clause, it has been long
established in comparative constitutional jurisprudence --to which the limitation clause
makes reference-- that the limitation clause may not be invoked to prevent a class of
people, however identified, from enjoying the total use and benefits of a given
constitutional right. The limitation clause may not limit the exercise of a given right by
certain people identified on the basis of criteria contemplated by the equality clause,
but can only limit it on the basis of the circumstances, time, manner and place in which
the right finds itself to be exercised. Therefore, in the absence of a justifying
circumstantial and factual reason, one could not limit the constitutional rights of, for
instance, Muslims, or homosexuals or people of French origin.
2.3 In many constitutional states the rights of aliens are limited.
However, the constitutions of such states often do not entrench the rights of aliens but
only of their own citizens, especially with reference to the so-called second generation
rights, such as the right to health care, the right to education, the right to legal
assistance, the right to housing, the right to food and water, the right to social
security, and possibly the right to fair labour relations. In many established
democracies, such as the United States, aliens are mainly entitled to first generation
human rights, usually regarded as "procedural due process".
2.4 In South Africa we will need to determine the extent to which the
circumstances of being an alien, either a legal or illegal one, may authorise government
to provide them with a lesser degree of constitutional protection. However, even if there
is uncertainty on the extent, there is agreement that alienage is one of the circumstances
which triggers the application of the limitation clause as a matter of fact which enables
government to legitimately deal with aliens on a different footing than it would with its
own citizens. It can be noted that the Preamble to the Constitution suggests a special
emphasis on citizens ("...every citizen is equally protected by the law" and
"... improve the quality of life of all citizens" as opposed to the lesser
obligation to "...free the potential of each person").
[ Top ]
2.5 In any case, constitutional protection applies only to aliens in
the country and does not preclude the absolute right of government to choose who should be
allowed into the country. In terms of section 21(3) only citizens have the "right to
enter, to remain in and reside anywhere in the Republic". As a sovereign State the
Republic has a wide, but not absolute, right to exclude entries of aliens on policy
grounds. As far as the rights of aliens are concerned, Government could legitimately
choose to prohibit or severely regulate the entry of aliens on the basis of
categorisations which Government could not use when dealing with its own citizens. It
could, for instance, decide to prohibit entry into the country of anyone who is poor or
anyone who is of a certain origin or age or even religion, up to the point where such
actions are not found to violate the rights of religion or association of its own
citizens.
2.6 Aliens in the country do not have a constitutional right to remain in the country
and the Government is not under any constitutional obligation to issue entry visas or
permanent residence permits to anyone who is in or outside the Republic, unless its
failure to do so may be deemed to hinder the exercise of constitutional rights of
citizens, for instance if Government chose not to allow into the country preachers of a
certain religion practised by its citizens. Moreover, once in the country, aliens do not
seem to be entitled to the protection set forth in section 22 of the Constitution
encompassing "the right to choose their trade, occupation or profession freely".
Therefore, the regulation of aliens in the country could legitimately impair their
opportunity to work or to develop economic activities in the Republic, provided that their
right to administrative justice is respected, i.e., there is no obligation on the
side of Government to issue and perhaps renew work permits, but, once issued, work permits
could not be withdrawn at will3. It follows that, since
aliens outside the country have no right or legitimate expectation in respect of their
entry, the constitutional protections set forth in section 33 of the Constitution, such as
the right to receive a written justification, could be inapplicable. Aliens in the country
have the right to leave the Republic (section 21.2).
[ Top ]
2.7 There are provisions in the ACA which seem to conflict with the
notion that aliens in the country are entitled to the full protection of those sections of
the Constitution providing for first generation human rights. For instance, the statutory
requirement that a resident may be forced to pursue his occupation only in a certain
province may violate his right to freedom of movement.
2.8 This White Paper acknowledges that its scope is limited only to
considering the parameters under which Government may regulate the entry and permanence of
aliens within the country. In fact, the Constitution has rendered the emigration of
citizens from the country on a permanent or temporary basis a matter of right. In this
respect, the constitutionality of the presently used "departure forms" could be
questioned if one believes that the privacy clause precludes Government from obtaining
information in respect of constitutionally protected activities4.
2.9 In other respects the ACA does not reflect intervening legislation.
For instance:
- the reference to the Regional Services Council and Joint Services Board must
be updated to refer to Chapter 7 of the Constitution and the Municipal Structures Act of
1998, and
- the power of the Minister to issue warrants and the power to arrest without a warrant
infringes constitutional protection and conflicts with other legislation5.
[ Top ]
Identified Problems
- In considering public inputs and comments received relating to the application of the
ACA, the Task Team has identified the following complaints which have formed some of the
basis of the policy formulation set forth in this White Paper:
- the ACA has not been effective in preventing the entry of large numbers of
illegal immigrants. In fact, the overwhelming concern of the public which emerged during
the hearings was about preventing and redressing illegal immigration;
- given the growing number of illegal and legal aliens, it is impossible to police their
activities in South Africa because emphasis is placed on border control and the few
available immigration officers are too busy with administrative procedures to do field
work;
- the ACA does not provide clear criteria to determine who may become a permanent resident
leaving the decision to immigration selection boards operating with great discretion. This
system was originally conceived to conceal discriminatory practices aimed at advantaging
potential immigrants from German and Dutch countries6, and
now seems irrational, unaccountable, non-transparent and costly. An attempt has been made
to obviate this problem by means of sub-sections 25(1) and (15) of the ACA which give the
Director General the powers to prescribe required information and forms and to create
categories of applicants for permanent residence. This process has identified several
categories, such as investors, holders of permanent job offers, et cetera, which
have been embodied in a policy document approved by Cabinet. However, none of these
categories appears in the regulations, nor do they comply with the statutory requirement
to be prescribed by regulation, and their legal basis seems questionable;
- it seems unfair that through the TEBA arrangement only mining houses can utilise foreign
labour which could for instance also benefit farmers; and
- the abuse of section 41 permits issued to many illegal immigrants merely for the purpose
of keeping track of them has been noted. Moreover, it has not been possible to determine
how the holders of section 41 permits have in fact conducted themselves while in South
Africa.
[ Top ]
3.1 It has been noted that illegal aliens have the following negative
impact on the provision of services and on our society:
- they compete for scarce resources with millions of South Africans living in
poverty and below the breadline;
- they compete for scarce public services, such as schools and medical care,
infrastructures and land, housing and informal trading opportunities;
- they compete with residents and citizens for our insufficient job opportunities, and
offer their labour at conditions below those prescribed by law or the applicable
collective bargaining agreements;
- a considerable percentage of illegal aliens has been involved in criminal activities;
and
- they weaken the state and its institutions by corrupting officials, fraudulently
acquiring documents and undeserved rights and tarnishing our image locally and abroad.
Formulation of a new Policy
4.1 During the public hearings the most often voiced complaint was
about the incapacity of Government to regulate the influx of illegal immigrants. The
pressing demand from public inputs was for creating a system which can effectively deter
and prevent people from illegally immigrating into South Africa. These comments have
confirmed the policy viewpoint adopted in the Green Paper that policy and legislative
instruments in the field of migration should aim at providing the government with the
necessary tools to retain control over who may enter the country and the conditions and
length of their stay7. Therefore this White Paper has
accepted the following as one of its main policy parameters: the migration system
should enable Government to retain control on who may enter the country and the conditions
and length of his or her stay
4.2 The Green Paper classified the reasons causing illegal immigration
under the labels of "pull factors" and "push factors", the former
being the reasons that attract people into South Africa and the latter being the reasons
that force or induce them to leave their country of origin.
[ Top ]
4.2.1. To prevent illegal immigration, in theory Government could work
on
- reducing "pull" factors
- reducing "push" factors and/or
- securing its land and sea borders in such an effective manner, and/or take other
internal policing actions, so that, in spite of the strength of "pull" or
"push" factors, illegal aliens could be prevented from entering the country, or,
if in the country, could effectively be removed.
4.2.2. The Green Paper suggested that the solution to the problem of
illegal immigration must rely on all the foregoing techniques and that policy emphasis
should also be placed on dealing with the root causes of migration, thus diminishing the
reasons for some people leaving their countries of origins. However, given the fact that
most illegal immigrants are coming from the rest of the African continent, it would be
naive to structure an immigration system for South Africa that relies on the possibility
of remedying the "push" factors at work in the rest of the continent.
4.2.3. Persistent economic disparity, poverty and political and social
turmoil are likely to continue to force or induce people to migrate from the rest of the
continent towards South Africa. If and when such circumstances change, one may reconsider
the existing immigration system, but for as long as they persist the South African
immigration system should take account of them. The suggestion set out in the Green Paper
that migration issues should be tabled in international (bilateral and multilateral)
discussions should be accepted and the route of international cooperation on migration
matters should be pursued as far as possible, but in the short and medium terms one should
not count on its outcome to solve present-day problems. Therefore, this White Paper has
accepted the following additional main policy parameter: under present circumstances it
is not possible for South Africa to deal with the "push" factors acting in the
rest of the continent nor build a migration system predicated on the improvements of these
factors.
4.3.1 Members of the Task Team visited the United States to
determine ways and means of securing land borders. The long land border shared between the
US and Mexico is crossed by a large number of illegal immigrants. In order to secure small
segments of such an extended border, the US has invested resources and personnel far
beyond what is available to the SA Government in the short and medium terms, and has not
yet won its war against illegal immigrants. Billions of US dollars have been spent on the
construction of roads and the provision of illumination, patrol vehicles, sensors and
other resources to secure a mere thirty-seven mile segment of the US-Mexican border. Such
technology appears to be what is objectively required to prevent and detect illegal
entries in a humane form. South Africa does not have the resources necessary to secure its
7,000 km of land border in such a fashion. Moreover, South Africa has no effective coastal
patrol, even though our coastal borders are not yet under pressure of illegal migration.
Therefore, this White Paper has accepted the following additional policy parameter:
the
migration system must not heavily rely for its success on actions taken to secure the
countrys land and sea borders from people willing to cross them illegally.
[ Top ]
4.3.2. With regard to the suggestion that improved deportation
procedures may be part of the solution to the problem, this White Paper has taken
cognisance of the present reality. According to the HSRC, in 1997 there were an estimated
three to five million illegal immigrants in South Africa. Presently, the Department is
deporting about 160,000 aliens per year. If, for arguments sake, the Department were
to succeed in the impossible task of sealing off the borders so that no-one were to enter
illegally, at the present rate it would take between twenty five to thirty years to
repatriate the estimated number of existing illegal aliens, provided that such number does
not increase through normal population growth. It follows that a long-term successful
migration policy must include efforts to encourage voluntary repatriation of illegal
aliens because they no longer find South Africa attractive. It also follows that given the
"pull" and "push" factors and the difficulty of securing the borders
policy emphasis on deportation will not significantly improve the situation. Furthermore,
deportation is the end of a process which first requires law enforcement, monitoring,
investigations, detention and adjudication, all of which should receive priority policy
attention in order to allow deportation to play its important role in the migration
system.
4.3.3 This White Paper has accepted the hard fact of the matter: an
immigration system for South Africa cannot rely heavily on effective border control. Once
it is painfully accepted that the country cannot succeed in preventing people from
crossing its borders and may not rely only on deporting them, many important policy
conclusions follow. Under the present circumstances people will continue to take enormous
risks and endure personal anguish to enter South Africa illegally because of the
attraction of the "pull" factors. Therefore, policy emphasis should be given to
reducing the "pull" factors which make South Africa attractive to them.
[ Top ]
4.4.1 The analysis of what can be done to reduce the attractiveness of
"pull" factors is complex and it lends itself to policy and legislative
intervention only with some difficulties. Simply put, under present circumstances it is
difficult to legislate the elimination of "pull" factors. However, it is
possible to promote a different management of migration issues which makes a community
responsible for cooperating with internal policing actions to ensure that illegal
immigrants are not attracted to South Africa.
4.4.2 In a country with a unified economic system, the simplest way to
build a migration system would be to rely on market forces through the full enforcement of
labour laws. If labour laws were completely and fully enforced migration could be more
easily regulated. If (illegal) aliens were subject to exactly the same tax withholdings,
basic conditions of employment, collective bargaining agreements and safety regulations,
any of them employed in South Africa would by definition be needed for the countrys
economic growth and should be allowed to remain. In fact, for as long as it is marginally
more administratively inconvenient or costly or troublesome to hire a foreigner rather
than a South African citizen or resident, if all labour laws were fully and equally
enforced, it would follow that any alien so employed does not take away job opportunities
from South Africans and makes a valuable contribution to the economy. Therefore, this
White Paper has accepted the following additional main policy parameter: the
development of a migration system is closely interrelated to the management and regulation
of labour dynamics and requires an interface with labour institutions.
4.4.3 This White Paper is aware of the Governments commitment to
preserve, if not to promote, the informal sector. However, this White Paper recognises
that a migration system must address the perception, or the reality, that vast job
opportunities are made available to foreigners at worse workplace conditions than those at
which such jobs are available for South African nationals.
[ Top ]
4.4.4 It might be necessary to render employers, communities and trade
unions co-responsible in ensuring that labour laws are fully implemented and enforced. It
might be necessary to impose stricter sanctions on employers who hire illegal immigrants
and on communities who harbour them. In order to be effective, sanctions against employers
should not be capable of being easily monetized. For instance, we should reinforce the
imposition of fines on employers who have committed the offence of hiring unauthorized
foreign workers, and the fine should be of an amount in excess of what they have saved
through failing to hire someone in full compliance of applicable laws and collective
agreements. This fine could be paid into a special fund to promote training of South
African workers. Jail sentences should be made applicable for repeated offenders.
4.4.5 It has been convincingly argued that from a macroeconomic
viewpoint there are benefits to be gained from illegal aliens working below the standard
and criteria set forth by existing labour legislation. It is argued that such labour
supply serves to calm rising social demands and reintroduces an element of flexibility
into an increasingly rigid labour market. It is also argued that the labour of illegal
workers may promote economic growth by maintaining the viability of enterprises which
would otherwise become extra-marginal because of current labour cost and, therefore, meets
a segment of the labour demand which is not currently supplied from within the South
African market. While recognising the possible economic accuracy of these arguments, this
White Paper cannot endorse them as a matter of policy as they are tantamount to affirming
that present legality should be undermined because it is not completely satisfactory.
However, this White Paper recognises that any government is likely to fail if it attempts
to counter market forces moved by the invisible hand of economic fundamentals.
[ Top ]
4.4.6 Cognisance is also taken of the fact that mining, one of the
countrys main industries, relies heavily on migrant foreign labour, whose financial
remittances benefit Mozambique and Lesotho, Swaziland and Botswana through compulsory or
voluntary deferred pay8. The Chamber of Mines has submitted
that the conditions of employment of alien miners do not differ from those of South
Africans, but it has conceded that mines cannot find sufficient South Africans willing to
work under such conditions. The end result is that these aliens work in conditions which
are inferior to those that would most likely emerge through collective bargaining if only
South Africans were employed in the mines. Nonetheless, foreign labour supplies an
under-supplied segment of the labour market, and acts to calm social demands.
Cognisance is also taken of the fact that farmers wish to employ
seasonal workers during harvesting and planting season, often illegally or in terms of
section 41 exemptions9. There is no shortage of available
workers for such purpose, but it is argued that migrant farm workers are needed because
local labour markets may not be able to supply workers with the urgency required by the
narrow time frames to seed and harvest and that migrants are preferable to top up ordinary
farm staffing because they depart at the end of the season. In compliance with both
immigration and labour laws, these migrant farm workers could be accommodated under the
corporate work permit discussed infra.
4.4.7. It is not the role of the migration system to adjudicate these
controversial matters, but provision must be made to meet such labour requirements when
there is agreement on how to proceed. Therefore, this White Paper suggests that the labour
demand for workers whose conditions of employment do not comply with the prevailing
conditions be satisfied through a legal and regulated system rather than ignored and
fulfilled through illegal means. It is recommended that the negotiation among social
partners could provide for quotas of workers who could be sponsored by employers who are
responsible for them and under specific programmes in respect of which general conditions
of employment do not apply and are regulated by special conditions agreed upon by the
social partners in Nedlac. These agreements could be conducted on a sector by sector basis
or on the basis of an additional national bargaining council established for this purpose
under the Labour Relations Act or an amendment thereto.
[ Top ]
- The shifting of policy emphasis onto effective enforcement and implementation offers the
opportunity of building a migration system starting from the tail end of service delivery,
tracing it back to a statement of general policy. This White Paper has focussed on a
bottom-up approach highlighting what is required at community level in respect of
migration policies and has projected it into a general formulation of a national policy.
Analysing community needs, this White Paper has identified the following priorities:
- ensuring that illegal aliens do not take available job opportunities away
from community members and do not compete with them for scarce public services;
- ensuring that illegal aliens do not become public charges or become involved in criminal
activities;
- ensuring that education is provided at community level to avoid any form of xenophobia
by making communities understand the tragedy of illegal immigration while cooperating with
law enforcement authorities;
- ensuring the resettlement of refugees and ensuring that they are not confused with
illegal immigrants;
- ensuring that communities, industries or businesses who need to acquire the skills or
contribution of foreign workers can do so without administrative delays or problems; and
- ensuring a community based production of data and information necessary to determine the
need for and quotas of foreign labour.
5.1 The present Chief Directorate (Migration) be restructured as an
Immigration Service [I.S.] operating at community or regional level. The
Immigration.Service should be headed by a Deputy Director General. The regulations should
be adopted on the basis of procedures set forth in the immigration law and requiring prior
public notice of the intention to regulate and the participation of the public, with the
possibility of commenting on draft regulation and the requirement that the final
regulations motivate how comments have been regarded, accepted or rejected. Those who
request it, should be put on the I.S. mailing list and notified about any new proposed
regulation.
[ Top ]
5.2 The I.S.s functional head will, as is currently the practice,
be under the supervision of the Director General of Home Affairs. An Immigration Review
Board should be established to monitor and advise the I.S., especially in respect of rule
making. The Board, appointed by the Minister and ratified by the relevant parliamentary
portfolio committee, should have a broadly representative composition, including a
representative of the national association of local government, the three components of
Nedlac and expert businessmen and social workers. The approval of the Board will be
required for specific aspects of rule making in which the I.S. may find itself in a
conflict of interests , such as the setting of fines, application fees or payments which
are retained by the I.S., or when more-than-ordinary discretion needs to be exercised,
such as in the determination of national interest, for instance in respect of desirable
businesses and waivers of requirements. The Board will not directly adjudicate any
application or appeal, but new, uncertain or policy-determinative matters may be deferred
to it for adjudication by the I.S.. Thus the Board cannot be used as a delay mechanism in
deportation procedures.
5.3 The I.S. should enforce immigration laws within each community and
cooperate with police structures and community interests to ensure that illegal aliens are
not harboured within the community and that the community does not perpetrate crimes
against aliens or display xenophobic behaviour. By checking, in cooperation with the
community, whether illegal aliens are receiving services from banks, hospitals, schools,
and providers of water supply or electricity, they should contribute to creating the
perception that South Africa is not a good receptacle of illegal immigration, thereby
reducing the "pull" factors. As suggested in the Green Paper, this programme
should be advertised in foreign countries to create, at the point of origin, the
perception that South Africa does not offer the answers that foreigners are looking for
when they immigrate illegally.
[ Top ]
- The community based approach also offers some of the answers to
other fundamental questions relating to the formulation of an immigration system, namely;
who should be allowed to enter, under what conditions and on the basis of what criteria.
- The restructuring of the migration section of the Department of
Home Affairs into an Immigration Service should be accompanied by the creation of an
additional professional security service that complies with the Constitution. This
security service should be an intermediary one as compared to the defence and police
services. Its members would not have general police investigative capacity or law
enforcement authority beyond immigration, border control and the protection of buildings
and structures. Their jurisdiction would be unambiguously separate from ordinary criminal
policing. However, they would be especially trained to conduct investigations and
monitoring at community level in respect of this subject matter. As specifically trained
persons, they could not be recruited automatically from the ranks of the police or the
defence force. Their equipment would be lighter than that which is available to the
defence forces but may include some of the defence forces heavier surplus equipment
for border control. This security service would be under the control of the I.S. and would
be trained in community work and the protection of immigrants and refugees, and could work
in cooperation with the other social and welfare services at community level for which
police training is inappropriate or unnecessary.
7.1 This additional professional security service could act on the
basis of agency or delegated powers from the Department of Finance to perform custom and
border control and some aspects of custom investigation. It could be supplied with
portions of the existing oversupply of human resources and equipment of the defence
forces, provided that both are reconditioned to fit the substantially different
requirements. Its officials would be trained to present cases in the immigration courts. A
suggestion has been made that this security service may have its own intelligence unit to
deal with specific aspects of large scale criminal phenomena associated with alien control
(see infra Section 7 paragraph 2.1 et seq.).
[ Top ]
- 7 -
Criteria for admission
A general framework for admission
1. One of the purposes of a migration policy is to determine which
foreigners can become part of the community of people of South Africa either on a
temporary or on a permanent basis. In doing so, the migration policy shapes the future
composition of the South African population. Theoretically, the migration policy could
choose to shape the future composition of the South African population by giving
preference to certain types of individuals who are deemed to be more desirable as members
of our national community than others. In this respect, for instance, the migration policy
could choose to give preference to professionals or people with skills or higher education
or, alternatively, could choose to prefer people from certain geographical areas, for
instance, the sub-Saharan African continent or South West Asia. Migration policy could
also accommodate the consideration of specific geographic areas as preferred ones.
Alternatively, the migration policy could choose not to discriminate against anyone
wishing to become a member of South African society either temporarily or permanently, and
could limit itself to set maximum numbers or quotas of aliens who at any given time could
be allowed into South Africa. The purpose of the migration policy is that of choosing
among these several options without leaving the choice to discretionary processes.
- The structure of the ACA should be reformulated to reflect a more systematic
and objective approach which reduces the system of administrative discretion previously
employed to disguise racially discriminatory immigration policies and practices. It is
also necessary that the bulk of immigration policies be embodied in legislation rather
than being left to regulations. This White Paper believes that the migration system should
identify clear criteria to determine the class of prohibited people, those who may enter
on a temporary basis and those who may permanently reside in South Africa. It is suggested
that these provisions be made in legislation, rather than being left to regulations.
However, flexibility could be introduced in legislation by providing for the power of the
I.S. to make motivated exceptions to be reported to the Immigration Review Board.
- The Task Team drafting the White Paper has received suggestions
that the entire classification of temporary residents could be left to regulations rather
than being entrenched in legislation. Similarly, it has been suggested that regulations
could determine criteria to be utilised to assess the need for foreign labour. This White
Paper recognises that some flexibility is required in these two areas since there are
certain categories of temporary entries into the country which are the product of the
evolving and changing needs of society. For instance, only recently the differentiation
between the category of students and that of tourists has faded away in the specific case
of edu-tourism, which are tourist activities centred around language and other courses
provided together with traditional tourist activities. Similarly, criteria to determine
labour requirements are bound to change with the rapidly changing parameters defining the
economic context. For instance, in the past it was simpler to differentiate between
professionals and non-professionals on the basis of received formal education, while
nowadays highly skilled professionals such as computer operators and programmers do not
always have the benefit of immediately verifiable and relevant academic qualifications.
- The need to promote the tourist industry of South Africa has been
identified as an important consideration impacting upon migration policy. In order to
support tourism the migration policy should facilitate the entry of tourists and register
the fact that our countrys range of tourist attractions is rapidly evolving and
broadening. In addition to the traditional forms of tourists there is now a new type of
tourist and new forms of tourism, in which the tourist engages in activities within the
country rather than remaining a passive consumer of services. For instance, in some forms
of eco-tourism, tourists participate in nature conservation and environmental management.
There is charity-tourism in which tourists work to assist people in need and join
voluntary services or religious groups. Moreover, there are several centres in the country
which provide edu-tourism which offers foreigners the opportunity of coming to South
Africa to combine study with entertainment. Trimestral or semestral courses of English
language instruction associated with recreational activities is a typical form of
edu-tourism. It also may include different types of educational activities ranging from
scuba diving training to anthropological studies. As the "pull" factors of
tourism evolve, a migration policy committed to encouraging tourism should avoid rigid
classifications.
[ Top ]
4.1 Rigid classifications are also becoming impractical in separating
tourists from business persons and business persons from traders. Business permits should
be subsumed under the general class of people who may freely enter the country if they
meet requirements indicating that they plan to live in the country for a short period of
time. This class would include tourists, traders, short-term students, business persons,
people receiving medical treatment in South Africa, and anyone else who has reason and the
means to stay in South Africa for longer than the prescribed period. It is suggested that
the prescribed period be for up to three months10, which
could be extended by application to the Immigration Service upon proof of means by means
of which the applicant can sustain him- or herself and an explanation of the activities
that he or she intends to perform. This three month period could be renewed only once to
six months. This length of stay will also accommodate job seekers. Student, tourist,
medical treatment and business permits will be available upon application for any stay
longer than six months.
4.1.1 The GNU has expressed its commitment to sustain the informal
sector and the public hearings have provided the Task Team with an indication that foreign
traders are beneficial to the informal sector. The three month permission to stay will be
applicable to traders and will force them to register as they cross the border rather than
continuing to cross outside of check points. It might be necessary for the I.S. to issue
such traders, and other people who are not in possession of documents, with a South
African internal travel document carrying the applicants fingerprints and
photograph. In this way I.S. officers should monitor informal trading sites to ensure that
any alien informal trader is legally in the country. This approach will make it possible
even for municipalities to inspect trading areas under their jurisdiction and report
illegal or undocumented traders to the I.S..
4.1.2 The present administration of temporary residence permits also
create anomalies in respect of the differentiations between work and business permits.
Usually, business permits are issued in respect of those who enter South Africa to conduct
a short-term work activity, either as self employed persons, or more often, as employees
of a foreign employer in pursuance of foreign employment relations (i.e.: lawyers,
marketing experts, business executives, et cetera). Work permits are issued in
respect of people who will be employed in South Africa by a South African employer.
However, this distinction is often not respected. For instance, in respect of the entry of
foreign artists, producers, photographers and actors who wish to make films and
commercials or take pictures in South Africa a cumbersome and controversial system is in
place. This system, which has no basis in law or regulations, enables a "Consultative
Committee" to charge a fee to applicants and to enable them to receive a work permit,
even though they should more properly receive a business permit. During apartheid
this screening mechanism enabled the Government to keep out people hostile to it, while at
present it enables the Consultative Committee to force the applicants to hire South
African contractors, technicians and employees. The Consultative Committee consists of a
certain trade union and representatives of certain segments of the industry which stand to
gain from this arrangement. This situation seems to hinder the choice of South Africa as a
desirable place to shoot movies, thereby reducing the considerable potential revenues as
the relevant foreigners could hire substantial numbers of South Africans and help the
tourist industry by portraying South Africa abroad
[ Top ]
4.2 Therefore, it is suggested that a general classification be adopted
for all those who come into South Africa for a short period of tourism, business, trade,
study or other activities not requiring work11. In order to
facilitate their entry, they should not be required to have a visa if they provide proof
at the port of entry of a return ticket to countries specified in the regulations. Those
who enter across the land border should have a one-time visa or travel document to South
Africa issued upon application by a South African diplomatic mission. This visa should
carry digitized pictures. Alternatively, at all points of entry, people may enter on the
basis of a credit card procedure. The I.S. official will swipe any major credit card to
request authorization for a certain prescribed amount which will be debited or
automatically refunded once the visitor exits the country and his or her entry permit is
scanned: this amount will be equal to the per unit overall cost to find and deport an
illegal alien. Otherwise, the person wishing to enter may pay a non-refundable much
smaller prescribed entry fee to be actuarially calculated from the overall cost of finding
and deporting an illegal alien divided by the estimated percentage of stays which become
overstays requiring deportation. The two latter procedures are entirely run by computers
and require no major human or administrative resources. In conclusion, anyone wishing to
enter for three months or less may either apply for a visa at any of our diplomatic
missions or hold a return ticket or deposit a prescribed amount by credit card to be
refunded as s/he leaves or pay a small entry fee.
4.2.1 Those admitted under these circumstances are not permitted to
work as employees or be self employed, and cannot obtain any of the relative documentation
or government assistance, such as employer or employee tax registration numbers.
4.2.2 The lack of visa requirements should be constructed as an
exception to be granted or confirmed by the I.S. for a number of countries. In fact, if
from a statutory viewpoint we scrap the visa requirement, we may abdicate on the principle
of reciprocity and lose the possibility of requiring visas from countries which are
particularly problematic. The I.S. should retain the prerogative of withdrawing visa
exemptions in respect of certain countries or classes of people. Nevertheless, this system
would increase the risk of "back door" immigration where aliens keep exiting and
re-entering. However, if the shift of emphasis on community enforcement is successful, the
cost of their presence in South Africa would be limited.
4.2.3 This greater latitude in respect of the entry of broadly defined
tourists, traders and businessmen should be accompanied, as proposed in this White Paper,
by more stringent controls at administrative and community level to ensure that any person
so admitted does not exceed her/his stay or engage in non-permitted work activities.
Simply put, if the administrative and enforcement side is effective in preventing people
from overstaying or acquiring illegal employment, it becomes less pressing to adopt
cumbersome screening procedures in the issuing of visas or permits at ports of entry such
as airports.
[ Top ]
4.3 The formulation of a policy which is more flexible in respect of
controlling the entry of people but more stringent in respect of enforcing the conditions
of their stay within the country also reflects the international trends to which South
Africa has subscribed12. The SADC protocol currently under
consideration would call for the free movement of people, goods and capital. This protocol
is far from being finalised and could not be taken into account by this White Paper as a
binding policy parameter. However, we must assume that creating mobility of people within
the SADC remains a policy consideration of the GNU, for it otherwise would not entertain
the consideration of the SADC protocol, while the policy discussions emerging at
international level around its negotiation suggest that SADC countries are moving towards
a freer movement of people within the region. The migration policy must register this
trend while protecting the interests of South Africa. Once again, it is believed that the
only likelihood of reconciling these seemingly conflicting interests lies within the
possibility of developing administrative capacity at community level to enforce the
conditions of stay of foreigners within South Africa to ensure that they do not work
illegally, become public charges, or engage in illegal activities.
- Consistent with the constitutional rights of aliens within the country, it is
suggested that the general provision be made for the judicially reviewed power of the
Minister to expel with cause any undesirable temporary residents or to revoke the
permanent residence permits of those who have committed crimes within a specified period.
In order to maintain consistency with the Constitution, the granting of temporary and
permanent residence permits should be made contingent upon the acceptance on the side of
the applicant of such power. Permanent residence permits should be contingent upon a
period of good conduct and the applicant must accept that if s/he is found guilty of
certain criminal activities her/his residence permit may be revoked. This condition and
limitation would be part of the granting of residency and therefore would not infringe
upon vested rights even though it would be subject to judicial review to ensure that the
grounds specified in the law do indeed subsist.
[ Top ]
Admitting those contributing to our growth and prosperity
- Another fundamental policy expressed by the GNU since its commencement is that
of encouraging foreign investment. Foreign investments often consist of capital,
technology, innovation, human resources and other means of production. The policy of
promoting foreign investments has a bearing on migration policies. Migration policy may
facilitate the settlement in South Africa of the human resource component of a foreign
investment. Several techniques are available to facilitate such settlement.
6.1 Provision should be made for investors residence permits,
both temporary and permanent. Regulations should determine the financial threshold
required to be invested in South Africa in order to qualify for such a permit. The simpler
way of handling this process would be to determine that an amount prescribed by regulation
entitles a given investor to a permit for a certain period while a greater amount entitles
him or her to a permanent residence permit. Provision should be made to accommodate self
employed people. The amount of money that they bring into the country should exceed what
is required for them to live on and should be sufficient to constitute the basis for a
business capable of participating in economic growth and producing job opportunities.
6.2. It is suggested that only the monetary coefficient should be
utilised, rather than combining it with the consideration of employment creation. A labour
intensive business would pass the minimum required investment, for labour is a relevant
cost to be financed: a labour intensive business requires capital. However, a capital
intensive business, which does not necessarily require labour, should not be discouraged
merely on the grounds that it does not directly increase job opportunities, for any
capital input in the country indirectly creates additional job opportunities in other
sectors. Moreover, dealing exclusively with a monetary coefficient simplifies
administrative procedures.
6.2.1 However, the Immigration Service should be allowed to give
permits upon application for special businesses which, even if they do not meet the
capitalisation requirements, are nonetheless likely to create a prescribed number of job
opportunities or are in the national interest. For instance certain hi-tech businesses
could be regarded from time to time as being in the national interest. The I.S. may
negotiate conditions which may be imposed for businesses in the national interest, for
instance the possible requirement to serve rural areas in the case of medical practices.
The permit would exist for as long as the declaration of national interest and the
business exist.
[ Top ]
6.3 It is important that either the law or the regulations specify the
nature of the investment to avoid a mere temporary transfer of money from a foreign
country into South Africa to enable aliens to obtain visas when in fact the funding does
not become a productive part of our national economy, i.e. the purchase of a
residence. It should be required that such funds be employed in the establishment of a
business venture and that the funds become part of its book value. Also in this
respect, it is difficult for Government to verify the good faith of business transactions
or vet a business plan. Money could be imported into the country and then utilized for
personal purposes under some corporate facade without substantially benefiting economic
growth. In this case, even though there would still be a marginal benefit for the country,
the full benefit of the foreign investment would not be realised.
Moreover, it is difficult to verify that once funding has come into the
country it is not transferred abroad, especially in light of the policy announced by the
GNU of relaxing existing foreign exchange regulations in the future13.
The simpler way of handling this issue, reducing Governments duty to mingle in
business matters with which it is not au fait, is to request any applicant to
provide a certification from a reputable certified South African accountant that the
applicant has employed the required amount in a business concern in the country. In order
to maintain the permit so received, the applicant will need to provide a similar
certification within two years indicating that the amount invested in the business venture
has not been dis-invested or taken out of the business. This approach simplifies the
application process and related time frame. Usually business concerns are audited for
various purposes and this additional requirement would not be considered burdensome by
applicants. This approach would also reduce administrative costs and Governments
responsibilities. Enforcement would be facilitated and could be performed through
inspections in conjunction with the tax authorities. The South African accountant who
provides the certification would also be responsible and, in cases of fraud, could become
the object of prosecution by the I. S..
[ Top ]
6.4 The proposal that migration policy may from time to time identify
areas of investment to be preferred to others for immigration purposes is problematic.
Government is in no better position than an investor to determine in which area a business
may be viable. If, as a matter of public policy, Government wishes to attract investments
in a given field, it should use usual economic incentives for domestic or foreign
investors, which will be factored into the consideration of foreign investors, leaving the
matter beyond the scope of a migration policy.
- A more effective procedure can be adopted in respect of larger domestic or
foreign investors. Upon application to the I.S., a domestic or a foreign business
intending to relocate human resources to South Africa could receive permission to import a
certain number of people. Such a business would be handling the visas as well as the work
permits directly on the basis of delegation from the I. S.. For instance, if given the
nature of the business, the applicant needs to import a fixed maximum number of foreign
employees, it could issue such number of residence permits administering them internally
with the possibility of returning one person to the country of origin to substitute him or
her with another one, without having to involve the I. S.. The applicant will need to
declare that its employees are not prohibited persons. This approach also makes it
unnecessary to differentiate between permanent and temporary residence permits, provided
that any holder of such a permit is eligible to apply for a regular permanent work permit
if s/he meets the relevant requirements. The administration of this delegated power to
issue visas and permits by a corporation would be monitored by the I.S. and the corporate
applicant would be required to file periodic reports on its activities and the list of
visas and permits issued. The number of permanent or temporary permits which could be
issued in this fashion would be the result of negotiations with the I.S. under parameters
prescribed by the Immigration Review Board.
[ Top ]
7.1 At any given time, the corporate applicant could not issue a number
of visas or permits greater than that permitted by the I.S. and would be responsible for
ensuring that people to whom the permit are issued leave the country upon termination of
their employment or permitted period of stay. The I.S. would monitor compliance. In case
of an irregularity, abuse or fraud being detected, the corporation would lose its
privilege, which could have disastrous consequences on its business, and it would be
subject to fines. The corporation would need to produce a statement from a certified
accountant which indicates the number of people required in the applicants business
and their qualifications and brief job descriptions. These statements would be vetted by
the Department of Labour. The I.S. would negotiate with the applicant the ratio between
the number of people which the applicant can import from abroad and the number of people
that the applicant must hire from within South Africa. By doing so the Immigration Service
would ensure that foreign investments would also create additional job opportunities for
South Africans. The regulations or the statutes should require that special attention be
given to the training of South African nationals. Each of the aliens so employed will need
to comply with the requirements set forth for temporary work permits.
7.2. This corporate work permit should be available not only to foreign
investors but also to domestic corporations as authorized by the I.S. after consultation
with the Department of Labour. This arrangement would cater for the needs of mining houses
which have traditionally been especially dependent upon foreign labour. Through
negotiations between the I.S. and the mining houses, it should become possible to begin
reducing such dependency so that more South African nationals could take up mining jobs.
The same approach could be used for farmers, enabling them to apply once for the entire
life of their farming activity, subject to periodic review. In administering these
corporate work permits, the IS should act after consultation with the Department of Labour
and in terms of its regulations which, in this respect, should be approved by the
Immigration Review Board, whose composition includes Nedlacs social partners.
- The most important aspect of the migration policy set forth in this White
Paper centres around the role of the restructured Immigration Service [I.S.] in respect of
illegal immigrants within the country which has greater emphasis on the monitoring and
enforcement side of the equation. This reviewed role immediately affects the proposals
made in this White Paper in respect of one of the most contentious and difficult issues
that needs to be settled: the determination of criteria to be used to qualify potential
immigrants for permanent or temporary work permits. There is recognition that we need to
attract qualified people in South Africa to offset the brain drain and to promote economic
growth. However, the question remains as to how many of them are required, what their
qualifications should be, and whether the nature of their employment should be temporary
or permanent. Who determines how many plumbers we need and what qualifications we require
of them?
[ Top ]
8.1 It is difficult for Government to determine what type of skills are
required within South Africa, and who the people are who can contribute such skills to our
economic growth. Some skills may be documented through and by virtue of academic
qualifications, such as school certificates, diplomas and university degrees. However, in
the rapidly evolving realities of present day economy, these academic qualifications often
have only a limited relevance in determining whether someone has the skills required for
our economic growth. Some skills in fields such as information technology, marketing and
business development do not easily lend themselves to on-paper certification. Furthermore,
there may be a need for skills which are required for a trade or profession which do not
appear from the curriculum of academic training, such as those which a plumber, a sound
technician or an electrician may possess.
8.2 There are suggestions that Government should develop a
comprehensive data base located in the Department of Labour to determine who the country
needs, what skills they should have and how many aliens at a time should be allowed in14. This type of economic planning has often proven to be
ineffective. Usually the data thus collected is a reflection of the immediate past, and
only through a subjective extrapolation can future needs be identified. It is also
secondary data, for the need arises within the industry and such data will only be as
accurate as the degree of cooperation received from the industry. In the final analysis,
only the industry can tell who the industry needs, why and for how long. Government would
need to receive this information from the industry and liaise with it. Nonetheless, such
information is necessary to develop a so-called "point system" to determine who
should be allowed to work in South Africa. The Task Team drafting this White Paper has
noted the many reservations about the point system raised in the countries which make use
of it, in spite of such countries having a vast information infrastructure already in
place.
8.3 Conceptually, it would be simpler if the industry by itself could
determine what it needs to grow and prosper and were able to satisfy these needs from the
world labour market. As indicated earlier, at least in theory, if the labour legislation,
conditions of employment and collective bargaining agreements were always as fully
implemented and enforced in respect of foreign workers as they are in respect of
nationals, by definition any alien employed in South Africa would not be taking a position
capable of being filled by a South African. In fact, for as long as employing a foreigner
is marginally and substantially more expensive and inconvenient for an employer than
employing a South African, any alien employed in South Africa would by definition fill a
position for which a qualified South African is not available. This approach does not
counter the consideration that even though a foreigner so employed might not take a job
opportunity away from a South African, s/he nevertheless diminishes the employers
incentive to train a South African to take that position. There is a legitimate concern
that if qualified foreigners are easily available, employers might choose to hire them
rather than training South Africans for the jobs.
[ Top ]
8.4 In the light of the foregoing considerations, it is suggested that
the I. S. focuses its policy and administrative attention in a cooperative effort with the
Department of Labour, and the I.S.s inspectors monitor businesses to ensure that no
unauthorised foreigners are employed and that authorized foreigners work on the same terms
and conditions as their South African colleagues. The joint effort of the Department of
Labour and the I.S. should ensure that aliens are employed in South Africa in full
compliance, not only with the law and the regulations, but also with the applicable
collective bargaining agreements. Once the administrative and enforcement capacity is
strengthened to police the labour market, a new approach should be adopted in respect of
the issuance of work permits.
8.5 Any employer seeking to obtain the services of a foreign worker
should receive a certification from the Department of Labour that the conditions under
which he or she intends to hire the identified foreigner, including salary and benefits,
are not below the applicable collective bargaining agreement or other standards regulating
the labour conditions in respect of South African workers. The employer will also need to
certify that when in terms of law or collective agreement the tasks or services performed
by the foreigner would require a qualification if they were to be performed by a South
African, the South African Qualification Authority has found the qualification of such
foreigner to be equivalent to those that would be required of a South African.
8.5.1 Having obtained these labour certifications, without any further
requirement or waiting period, the employer could hire such an alien, provided that in
addition to the remuneration paid to him or her, the employer pays into a national
training fund a ratio of the salary, as prescribed by regulation. This contribution
will go towards the training of South Africans. In this system, employers will be hiring
foreigners at a higher cost than that at which they could hire equally trained South
Africans and will be contributing towards the training of their compatriots. In this
system any foreigner so employed will be needed and will be employed only for as long as a
South African is not available for that position, as then a financial incentive exists for
the employer to shift from a foreigner to a South African, as the latter would be cheaper.
In fact, the employer would not need to pay the prescribed contribution towards this
special training fund when employing a South African.
[ Top ]
8.6 This approach eliminates the need on the side of Government to
determine for how long a temporary work permit should be issued. It also allows the I.S.
to retain a tool of policy manoeuver to increase or reduce the number of foreign workers
by raising or decreasing the prescribed contribution towards the training fund. This power
should be exercised after consultation with the social partners in NEDLAC because of the
possible impact of foreign labour on domestic labour-market conditions. In respect of
holders of temporary permits, any increase in the required contribution should take effect
only after a period equal to five years minus the period for which the alien has held such
permit, in order to avoid infringing upon the aliens expectation to seek permanent
residency as set out infra. The work permit should be issued or renewed for as long
as the employer wishes to pay for the alien because, for as long as s/he pays the extra
costs for the aliens employment, that foreigner is by definition needed for our
economic growth, as having skills of some nature not otherwise easily available. In this
way, required labour would be available to employers without delay, undue hassle and
cumbersome procedures.
8.6.1 This system requires an effective Immigration Service which
inspects businesses after the issuance of the working permit to ensure that foreigners
perform the functions for which they were hired, rather than performing different and
potentially more highly compensated tasks. Employers hiring foreigners will be required to
file a periodic certification and should notify the I.S. when the alien is no longer
employed or is employed in a different capacity. The employer needs to certify several
elements provided for by regulations, including that the alien has been subject to tax
withholding and his or her conditions of employment have complied with applicable
standards and collective contractual provisions. The regulations may require this
certification to be performed by certified public accountants.
8.6.2 On recommendations formulated by the Department of Labour,
the I.S. could waive the employers training contribution upon proof that the
business concerned has undertaken an internal programme of training of South Africans.
[ Top ]
-
There is recognition of the fact that it is difficult to
obtain the services of qualified and skilled foreigners for an extensive period of time if
they cannot obtain permanent residency. It is the purpose of the migration system to
attract qualified, useful or needed people to become a permanent component of South
African society, thereby constantly improving on its ever-evolving overall composition. It
is difficult for foreigners to work in South Africa for extensive periods of time if they
do not have the security of living permanently in the country if they so wish. Lack of
permanent residency is a disincentive to buying houses, importing foreign capital and
settling down with some form of permanence which binds the skilled foreigner to the job
opportunity s/he has found in South Africa. Therefore, it must be recognised that a
permanent residence permit should be available to people who are required in South Africa
for a protracted period of time.
9.1 It is suggested that after five years of temporary legal employment
in the country any temporary worker may by right become a permanent resident. Those
applying for permanent residence on this ground will have worked in South Africa for five
years. So to speak, they will work their way into permanent residence and will have the
assurance of achieving it. It is legitimate to think that these people are a desirable
asset to our society. For five years their services were so needed that their employer was
willing to pay a higher price for them and for five years their employer has paid into a
special fund to train South Africans. Moreover, permanent residency would require an offer
of permanent employment. This system gives certainty to both the employer and the alien
that permanent residence can be acquired by the lapse of time and contributions towards
the growth of South Africa.
[ Top ]
9.2 The proposed system also expedites the administrative procedures
reducing the burden on government and enabling the I.S. to utilize its resources towards
inspections, monitoring and community activities. This ground for residency would mean
that South Africa accepts any foreigner willing to work hard to obtain it. In addition to
this automatic route to obtaining permanent residency, provisions should be made for a
discretionary process in which future labour needs and other circumstances may be taken
into account. Permanent residence could be obtained by application on the basis of a
permanent offer of employment but without the requirement of five years of prior temporary
work within the country. In this case, the Immigration Service should review each of these
applications on its merits. The granting of such applications will be limited by a quota
determined each year by NEDLAC on a sector-by-sector basis. The application would be
lodged by the employer on behalf of the alien and would need to be supported by evidence
that the position was advertised on the basis of the minimum conditions of employment
determined by the Department of Labour and no South African citizen or permanent resident
was ready, willing or qualified to take it.
-
Another aspect which may impact on the development of a
migration policy is the unfortunate consideration pointed out in the Green Paper that
South Africa is losing a number of qualified people because of emigration. A migration
policy should try to compensate the brain-drain with brain-gain
and brain-train. Brain-train can be achieved by requiring that
foreign investors who seek permission to reside in South Africa undertake to train a
certain number of people as indicated supra. Brain-gain could be
promoted by creating a special class of permanent or temporary permits, as exists in
countries such as the United States. These permits will be available for people of
exceptional skills or extraordinary qualifications. The I.S. will issue regulations to
determine applicable flexible criteria, and each application will be reviewed individually
on its merits.
[ Top ]
- A last type of work permit will be for working vacations which could be
pegged at a certain age limit. This permit may accommodate the needs of the tourism and
hospitality industry where foreigners enjoy the assistance of compatriots and many cater
for au pair domestic employment. These permits would not require labour certification or
payment into the national training fund, but would require proof of available financial
resources on the side of the employee, including any payment received while in South
Africa. This permit should be beneficial to our tourism industry, for usually young
working visitors come back as adult industries, possibly with their families.
-
Within the proposed policy it is no longer necessary to
require foreigners to apply for work or other temporary or residence permits from within
their country. This requirement has proven to be very cumbersome both for foreigners as
well as for Government and employers. This requirement was designed to discourage people
from applying for a different status once their permit in South Africa had expired and
they sought an opportunity to overstay. This requirement --which has given rise to wide
criticisms-- would conflict with the logic of this White Paper, as it prevents the
extension of a three month study permit or medical treatment stay and does not accommodate
those job seekers who have found a job, possibly through the corporate work permit.
Other classes of temporary and permanent residence permits
- Student permits should be issued for stays longer than three months. This permit will be
issued by the admission office of the place of learning where the student intends to study
on the basis of forms supplied by the I.S., as is the case in the United States. The
paperwork and the relevant certification will be provided by the school and endorsed by
the Immigration Service. The place of learning should indicate to the I.S. that it has
received financial guarantees that the student can provide for the tuition fees and for
him- or herself while in the country, and in the case of minors should identify who in
South Africa acts as the guardian. The school will be responsible for providing a
certification every six months that a student is satisfactorily performing his or her
curriculum of study and shall notify the I.S. when the studies have been completed or the
student is no longer performing as required. A study permit would not be a ground for
acquiring permanent residency, but could be followed by temporary work permit in the same
field of study, to be regarded as practical training. In this case for a prescribed period
the employer will not need to make the contribution to the national training fund, and the
length of this exemption will be determined by I.S. depending on the practical training in
the field of activity concerned, for instance in the case of legal studies for the period
of articles.
- Family reunification should become an important element of a migration policy. Spouses
of South African citizens should be entitled to receive permanent residence permits. It
must be noted that artificial colonial boundary lines and forced migration have disrupted
many family units. Even though there is provision in the ACA for residents permits
for spouses, the administrative practice developed by the immigration selection boards has
often discriminated between male and female spouses. While female spouses are more easily
granted permanent residency, when the applicant is a male, he is often required to prove
available financial means to sustain himself and his family.
[ Top ]
14.1 Provision should be made for fraudulent marriages. In addition to
information to be provided at the time of the application, provision should be made for
the verification of such a marriage after three years. The residency provided on the
ground of marriage should be a conditional one to be confirmed after three years if a
bona
fide marriage still subsists, or should the South African spouse have died. Even
though one is aware of the possible practical difficulties involved, both civil as well as
customary marriages should be accommodated under this provision, even though customary
marriages are potentially polygamous or polyandrous. Section 15 of the Constitution
requires the recognition of all types of marriages and the ACA15
as well as the Marriage Act of 1998 have registered this imperative providing for equal
recognition of civil and customary law marriages. If one were to discriminate between the
two for purpose of immigration law, the constitutional right of the South African spouse
would be adversely affected. Different types of marriages entered into under the laws of
foreign jurisdiction, such as common law marriages, should be recognized under the
regulations of the I.S. or the Immigration Review Board.
14.2 Given the phrasing of the equality clause in the Constitution, the
subject of homosexual permanent relationships should also be addressed. It is suggested
that the statute contains a provision enabling but not requiring the Immigration Service
to regard as spouses for the purpose of the granting of permanent residence permits, two
people of the same sex who provide a certain type of commitment about their relationship
in a form prescribed by regulations. As suggested by the National Association of Gays and
Lesbians, this could include an affidavit that their relationship has a character of
permanence and is based on a firm contractual arrangement to share life together in a
stable emotional and financial partnership involving cohabitation.
14.3 Family relations would also become the ground for a temporary
residence permit for relatives. This permit should be issued by the I.S. to people within
the third step of kinship of a citizen or the second step of kinship of a permanent
resident. These permits would apply for stays longer than three or six months. Therefore,
it would be appropriate to require the citizen who applies for his or her family member(s)
to stay in South Africa to provide financial assurance they s/he has the means available
to support them in the form of a certification of an auditor, as prescribed by the I.S.
Holders of this permit may not work.
[ Top ]
-
Medical treatment permits will be issued by the I.S. for
treatments requiring a duration of more than three months. These permits will be issued on
the basis of documents produced by the treating medical institution which will need to
indicate that the patient is bearing her/his own cost directly or through medical
insurance. The medical institution will need to notify the I.S. when the patient is
discharged and will specify the recovery period envisaged under the circumstances. This
can be a routine report done twice a year along with other labour compliance work which
should not place any undue burden on medical institutions. One may assume that the medical
institution may be the best judge in determining these matters as it has a vested interest
in ensuring that the applicants have sufficient means to provide for treatment. If the
medical institution provides treatment to the patient, there is a lesser need for
government to be concerned about financial assurance.
15.1 The application fees in respect of student and medical treatment
permits issued in respect of public institutions should be somewhat higher so as to
partially recover the State subsidy to these institutions.
-
The same approach employed for the foregoing classes of
permanent and temporary permits is envisaged for other permits which should similarly be
issued in a system which minimises the administrative requirement placed upon the I.S..
-
Diplomatic corps and foreign authority permits should be
issued on the basis of documentation produced by the Department of Foreign Affairs which
should deal with it during the course of its function, including the accreditation of the
relevant aliens. These permits would be of two classes, one for those who are part of the
diplomatic corps and one to be issued in respect of those working in foreign diplomatic
missions and official residences. The relevant list of such people detailing the duration
and conditions of their stay should be kept by the Department of Foreign Affairs.
[ Top ]
17.1 Persons receiving permits under government-to-government exchange
programmes should be admitted and should receive permits on the basis of documentation
produced by the organ of the state responsible for the exchange programmes. Such organ of
the state should report to the I.S. about all the visas and permits so issued and should
ensure compliance on the side of the aliens, reporting when they have completed the
programme and providing all the relevant information. The same shall apply for people
admitted in fulfilment of international treaties who could be permitted to stay in the
country on the basis of documentation issued by the Department of Foreign Affairs or any
other organ of the state responsible for the implementation of the treaty concerned.
-
Specific permits should be issued for crewpersons on the
basis of documentation provided by the owner of the vessel who shall periodically report
on all those to whom such permits have been issued and shall inform the I.S. if any of
them has not left the country as required. The owner, who is responsible, may delegate
this power to the master of a ship16. These permits may
circumscribe the area in which crewpersons may move to obviate the incidents lamented
during public hearings associated with crewpersons disembarking from ships in the three
major ports. Crewpersons are otherwise eligible for the standard entry permits and are
subject to its requirements.
-
In the administration of these functions, all the entities
acting on the basis of delegated powers from the I.S. will be required to post their
reports with the I.S. in an electronic form prescribed by the I.S. through the
world-wide-web network so that it can be downloaded by the I.S. on its own mainframe
without having to give outsiders immediate access to it.
[ Top ]
Conclusion
-
The foregoing system will be administered on the basis
of objective criteria or through administrative discretion exercised by the I. S. which
would be subject to the review of a court of law. Under these conditions there is no
longer space nor justification for immigration selection boards which should be abolished
as suggested in the Green Paper.
20.1 In conclusion, it is suggested that the statute should provide for
free entry of any person who is not a prohibited person for a period of three months,
renewable upon an application which specifies reasons for the person to stay longer. The
following temporary permits will be available for periods exceeding three months:
students, businessmen, workers, diplomats and foreign authorities, exchange and treaty
persons, crewpersons, patients, investors, persons with extraordinary skills, person of
extraordinary qualifications, and family members. The following permits will be available
for permanent residence: spouses, permanent workers, investors, persons with extraordinary
skills, and person of extraordinary qualifications.
- 8 -
Prohibited persons17
- The immigration law should contemplate classes of people who cannot enter the country
under any condition, or who can enter the country but cannot be granted a permanent
residence permit. Upon entering the country each person should certify that to the best of
her or his knowledge s/he does not belong to any of such classes. Any member of such
classes may not receive any temporary or permanent permit. Upon detection within five
years of any permit being erroneously or unlawfully issued to a prohibited person, the
permit should be rescinded.
1.1 Temporary residence permits should also be rescinded upon one conviction for one
significant crime. Permanent residence permits should be rescinded upon one conviction for
a significant crime within three years from issuance, or three convictions at any time
thereafter. In order to comply with the constitutional requirements related to the
protection of vested rights, these crimes must be identifiable in the statute governing
migration.
[ Top ]
- The following people should be regarded as prohibited persons:
- those with infectious disease identified by regulation:
- those with a record of prior criminal offences;
- citizens of certain countries identified by executive order of the Immigration Review
Board adopted in terms of I.S.s regulations;
- anyone against whom an arrest warrant has been issued by the Government of any country
with which South Africa entertains diplomatic relations in respect of genocide, murder,
terrorism, drug trafficking or money laundering;
- those who have been judicially declared incompetent;
- those who were previously deported from South Africa and, upon application, have not
been rehabilitated by the I.S.;
- members of criminal or terrorist associations, as identified by the I.S.s
regulations; and
- members of associations which encourage the practice of racial hatred or social
violence, as identified by the I.S.s regulations
2.1 The classification set forth in section 39(2) of the ACA is
problematic and possibly unconstitutional in some respect. For instance a blind person
could not enter the country and someone could become a prohibited person merely on the
basis of information which make him or her an undesirable person. While
"undesirables" can be denied entry, once in South Africa they are entitled to
the guarantees of natural justice and could not be so classified merely on the basis of
information received. It is suggested that a conviction or at least an arrest warrant be
required.
- The foregoing classification and provisions should aim at discouraging foreign
criminals and criminal cartels to identify South Africa as a convenient place to relocate.
- It is suggested that the I.S., in consultation with the police and
intelligence services, may waive any of the foregoing exclusions, but will need to report
periodically to the Immigration Review Board on any of such waivers granted.
[
Top ]
- 9 -
Naturalization
This White Paper has not tackled the issue of naturalization in its
specific detail as it mainly affects the citizenship law and is not presently regulated in
the ACA. For the purposes of this White Paper, it is suggested that the present framework
for naturalization could be maintained. Permanent residency should be a prerequisite to
the acquisition of citizenship through naturalization. However, exceptions could be made
for lineal descendants of citizens or in special cases. Citizenship should not be granted
when the same circumstances occur which would cause the loss of permanent residency or
disqualify one from obtaining it, such as having committed certain crimes. A greater
threshold of integrity and loyalty to South Africa would also be prescribed.
It is advisable that naturalization be administered through the I.S. as
it is a natural continuation of its line function.
- 10 -
Waivers and Discretionary Powers
- There is recognition that the Minister should have some discretionary powers to provide
for unforeseen circumstances or to meet special needs of the State or in respect of the
national interest. Therefore, these powers must be exercised with sufficient discretion.
In order to maintain the tenets of political and administrative accountability and
transparency, it is necessary to balance this discretion with sufficient checks.
- In addition to the powers and functions mentioned in other parts of this White Paper, it
is suggested that the Minister be given the power to shorten the time required to
naturalize a permanent resident.
- In other parts of this White Paper, mention is made of the power to waive specific
requirements and it suggested it be exercised by the I.S. However, there might be need for
a more general power, which is now provided for in several sections of the ACA, including
sections 10, 28, 36, 40(2) and 41. The exercise of this power should be monitored by the
Immigration Review Board.
[
Top ]
- 11 -
Enforcement
- The best way of achieving the voluntary repatriation of foreigners who have
come to South Africa on a temporary basis and whose reason to stay in South Africa has
expired, is to ensure that they cannot be employed illegally. Similarly, the best way to
prevent further illegal immigration is to create in South Africa an environment which does
not offer them the opportunities of employment and free available public services which
they cannot find in their countries of origin.
- The Immigration Service should liaise on a constant basis with police
structures at community level. Conversely, police should also be trained to detect illegal
immigrants and to verify nationality and residency upon arrest of suspects or during other
aspects of its interaction with the public and report to the I.S. The police should be
obliged to refer any illegal immigrant thus identified, to the I.S..
2.1 The I.S. should have the training and educatio |