White Paper in International Migration: hearings

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
26 October 1999
WHITE PAPER ON INTERNATIONAL MIGRATION: BRIEFING

Document handed out:
White Paper on International Migration
Input From Migration Directorate, Department Of Home Affairs

SUMMARY
Instead of discussing the White Paper on International Migration, Dr Mbatha, the Acting Director General in the Department of Home Affairs, chose to discuss generally the problematic issues surrounding migration. He reasoned that this would give the members an idea of what is happening on the ground and what necessitated the White Paper. The first problem he mentioned is under-funding which he described as "incapacitating." Dr Mbatha described the lack of infrastructure at the ports of entry as "demoralising" and, it contributes a great deal to the number of illegal immigrants entering the country. He criticised parliamentarians who intervene in the work of his Department by demanding that exceptions be made for particular individuals to enter/ prolong their stay in the Republic contrary to the provisions of the Aliens Control Act. Futile repatriation of immigrants, especially to Mozambique and Zimbabwe, and the critical staff shortage at Migration Services were some of the problems mentioned by the Director General. He asked members to have all the above in mind whilst considering the White Paper otherwise it would be purely theoretical to deal with the issues of migration.

MINUTES
Chairperson, Ms Z Capa, introduced Mr Mbatha, the acting Director General of the Department of Home Affairs and his delegation consisting of the Special Advisor to the Minister, Mr Ambrosini, and the Director of Admissions and Aliens Control, Mr C Schravesande. She reminded the members that the purpose of the meeting was for the introduction of the White Paper and its background and she urged the members not to seek to debate the paper as yet.

Acting Director General (DG) Mr Mbatha made the briefing on behalf of the Department. Mr Mbatha chose to brief the members on the issues of migration that are problematic so that when the members read the White Paper they would have an idea of what is happening on the ground. Without this background it becomes theoretical to deal with the issues of migration.

Dr Mbatha recounted the Departments' problems to the Committee and dwelled on the problem of under-funding. He announced that on November 1998 they received a budget of only 6002 million. On December 1998 the Department requested an additional budget of 75 million but was only granted 11 million. "We are incapacitated", complained Dr Mbatha. He reminded the members to bear in mind that his Department serves the whole population including foreigners, whereas other Department's serve only a section of the population. "The Department of Home Affairs deals with everybody from birth to death…The daunting problem of illegal immigrants has not subsided…and adding to that is the problem of international syndicates…If we don't receive the money it becomes impossible to fulfill our tasks."

Various points raised by Dr Mbatha in relation to migration:
- The Department interacts in various ways with the South African Human Rights Commission (SAHRC). The SAHRC trains personnel dealing with migration. He said the Department is working together with the SAHRC in finding ways of curbing escapes that result in deaths during deportations.

- The work of the Department is tampered with when some illegal immigrants via their attorneys and via some Government officials claim that during their arrests their rights were abused and therefore demand an extended stay in the Republic.

- A decision was taken by Cabinet to reduce the number of international airports so as to reduce crime occurring at airports and to save on scarce resources. By the beginning of 2000 five airports would lose their international status.

- About 147,000 illegal aliens are deported by train to Mozambique and 86 000 to Zimbabwe annually. The Department and the police in consultation with SAHRC and Spoornet are discussing ways of saving lives whilst the deportations are in progress. Handcuffing them to stop them from jumping whilst the train is in motion is one option and, converting the coaches into detention trains is another option. The question of human rights and the economic viability has to be borne in mind whilst the various options are explored. The DG refused to accept that it is the responsibility of the Department of Home Affairs to guard the borders "that is the task of the Defence…we have the responsibility of deporting. We must do away with such perceptions that the Home Affairs assists aliens to come to South Africa."

- On the 10 February 1999 the visa exemptions enjoyed by passport holders of the Ivory Coast, Senegal, Egypt and Kenya were withdrawn due to the many abuses of the exemptions by these nationals. [Since 1995 the granting of South African visa exemptions has been be based on the principle of reciprocity.]

- Despite approval of the Aliens Control Act by the Government, more and more often the Department is asked by officials in government to make exceptions in certain cases. During 1999 alone, members of Parliament involved themselves in 36 cases of migration applications or related residential status enquiries. "…The tone of address is often impolite, aggressive and even threatening," Dr Mbatha complained.

- There is a critical staff shortage in the Migration Services. "Our ports still function with the staff establishments approved in 1994 when 24 million travellers were recorded," as compared to the 29 million travellers recorded last year. In addition to this problem, the regions tasked to do so, cannot cope with the numbers of people seeking asylum in South Africa.

- The White Paper envisages developing a strong research programme that will focus on countries that South Africa receives claimants from and the research will assist in making consistent decisions on claims. Further, that a training unit to train staff dealing with refugees would be established. It is also recommended in the White Paper that there be special courts dealing with migration issues."

- Tthe appointment of casual workers at ports of entry is problematic as these workers are not committed due to the fact that they have no job security and so are susceptible to bribery. The infrastructure at border posts is not sufficient to deal with illegal entrance of persons and goods. He termed the situation as "demoralising." Moreover, poor lock-ups of official stamps and forms such as temporary residence permit labels lead to theft and loss of these at ports of entry. After being stolen these stamps are used by syndicates. "The high premium that is placed on service delivery and the facilitation of tourism and trade compromises our control function as inadequate time is allowed to investigate foreigners on admission to the country."

- The Department should not be at loggerheads with the Committee. There needs to be established a framework of viable co-operation between the Department and the Committee.

Questions and comments
Mr J Momberg (ANC): I do not know whether the Director General was critical of the members of Parliament when they are playing intervention roles in situations of migration.
Response (Dr Mbatha): I am simple raising this so that you know how the members of the Department feel about this particular issue.

Mr S Pillay (DP): I want to enquire about the status of migration officers. Do they have proper training and trainers? Secondly does the infrastructure exist for interaction with the Department of Labour as far as application for working permits is concerned?
Response (Mr C Schravesande): We do train officers and we have established a migration training unit to train migration officers and all staff dealing with migration issues. On the question of infrastructure, yes, there is sufficient infrastructure in place. The co-operation between the two Departments is, in my opinion, very good.

Mr M Sikakane (ANC): When we make interventions you must know that we do so in our capacity as representatives of the people. We will always do that so you need to accept this.

Mr K Meshoe (ACDP): Is there a perception that the SAHRC and the Public Protector are interfering with the process of the Department when an application has been refused. Secondly, if the Department has discovered the problem of bribery by casual workers in the airports, why can't they train full time people?
Response (Mr Schravesande): Yes the SAHRC and the Public Protector hamper our processes. The problem is that when all the paperwork is in order, we then have to stop the removal process. I must also say their co-operation with us is good but it stops the removal of persons every time. And yet I am not aware of any case where they have overturned us.
On the issue of casual workers, we use them because of the restriction on funds. It is far cheaper to employ them than employing permanent workers. We simply do not have the funds.

Ms N Ngcengwane (ANC): I think we should go out to the different regions and hear the views of the people and come back as a committee and discuss these issues.

Mr A Mlangeni (ANC) said the problem of illegal immigrants in South Africa is a complex one. The majority of the people in the squatter camps are not South African; they are a burden to the Housing Department. He narrated how rife corruption is at Johannesburg station where relatives and friends of arrested illegal aliens come and buy their freedom.
Response (Mr Mbatha): The fact that there are employment opportunities in South Africa and the fact that we have a stronger currency will always make people come.

What happens to people coming illegally from overseas such as India and Europe. Does the Department not have enough money to take them, if not, what happens to them?
Response (Dr Mbatha and Mr Schravesande): Our detention center takes only 1 500 people, so we would not be able to arrest everybody. We also have the so-called overstayers from Germany etc and in our view they are illegal. Since they are not involved in crime it is difficult to identify them.

Ms Z Capa (Chairperson, ANC): Are there any people who come via the harbours who possible sneak in unseen?
Response (Mr Schravesande): There may be a vast number of people who come through our sea ports undetected especially in Durban which has a very large perimeter.

Ms S Kalyan (DP): What time frame are you looking at for us to discuss the White Paper?
Response (Mr Ambrosini): We should soon rather than later table a draft bill and we need to see how the White Paper is matched by such a bill.

Mr M Sikakane (ANC): Is the extra R11 million for the whole Department or for the immigrations only
Response (Dr Mbatha): This is for the remainder of the financial year and it is for the whole Department and not for migration only.

The meeting was concluded.

Appendix 1
Input From Migration Directorate, Department Of Home Affairs

ITEMS FOR DISCUSSION: HOME AFFAIRS PORTFOLIO COMMITTEE
Admissions and Aliens Control inputs follow. Residence input not provided.

2. Agenda items
2.1 Framework for viable co-operation between the Portfolio Committee and the Department of Home Affairs
(Input to be provided by senior management)
It is suggested that bi-monthly meetings be held between senior management of the Department and the Portfolio Committee to discuss problems of mutual concern

2.2 Interventions from the Public Protector and South African Human Rights Commission
2.2.1 Requests from the Public Protector are seen in a serious light and attended to as thoroughly as possible. The personnel of the Public Protector accept proper motivation of decisions and actions. The interventions in this regard are not seen as detrimental to the execution of the functions of the Department.

2.2.2 The Department interacts in various ways with the South African Human Rights Commission.

2.2.2.1 HRC assists the Department with training of immigration officers and other personnel on human rights issues and the Bill of Rights of the Constitution.

2.2.2.2 The HRC also acts as watchdog on the Lindela detention centre and good co-operation exists in this regard.

2 2.2.3 The Department shares the HRC's corcern about the escapes from the repatriation train and the deaths that occur during such escapes. The Department, HRC and the SAPS are co-operating in an effort to find a suitable, human rights friendly solution to the problem.

2.2.2.4 The Department differs from the HRC in respect of the perceived xenophobia problems that exist. Although the problems indicated by the HRC are real, the Department's experience indicates a clash in respect of job opportunities in the unskilled and semi-skilled environment, rather than a problem that can be attributed to xenophobia.

Temporary Residence - From time to time the Department receives enquiries from these parties. It has been noted that illegal foreigners via their attorneys approach either the Public Protector or the South African Human Rights Commission for assistance and insight into Departmental records.

2.3 Late returning exiles and their foreign spouses (exemptions)
In terms of section 23(a) of the Aliens Control Act. 1991 (Act No 96 of 1991) any person other than a South African citizen who wishes to settle permanently in the RSA, must apply for an immigration permit and may not enter the country before such a permit has been issued to him or her. However, in terms of section 28(2) of the said Act, the Minister may, if there are special circumstances which justify such a decision, exempt any person or category of persons from the requirement to be in possession of (an) immigration permit(s).

During the time that exiles returned to South Africa, a specific category of officials of the Department of Home Affairs attended to the tasks relevant to these persons. 90% of these officials have since left the Department's service either by the granting of severance packages resignation or taking up other jobs. Most of the procedures applicable to returning exiles were not properly filed, which resulted in a situation of information not being available anymore.

During October 1999 the Department was compelled to request a former official to visit its Head Office with a view to explaining the procedures relevant to returning exiles and their families, after the Deputy Minister of Home Affairs informed the Department that certain foreign spouses of returning exiles must be granted unconditional exemptions. The information which has been obtained regarding this aspect during the meeting with the former official, is now being formalised in order to distribute same as training material and will be properly recorded and filed.

The situation comes down to the following: On 2 November 1990, a former Minister of Home Affairs issued a media release in which the procedures applicable to returning exiles and their families were contained.

Two categories of returning exiles were identified and the following procedures were to be followed.

Exiles who wanted to return to the RSA as members of a political organisation, i.e. on flights organised by assisting organisations such as the UNHCR, had to apply for extraordinary travel certificates or VRAF's (Voluntary Repatriation Application Forms), as they later became known. The names of their foreign spouses and dependent children had to be included in these application forms for extra-ordinary travel certificates, which were then also used as applications for permission to take up permanent residence in South Africa and the extraordinary travel certificates were endorsed accordingly.

Exiles who wanted to return to South Africa as individuals, i.e. not with the organised flights as in paragraph 1 above, were instructed to apply for South African travel facilities at the nearest South African diplomatic representative abroad. Upon return to the RSA. these former exiles had to apply for exemption certificates for their spouses and dependent children by requesting same from the Minister of Home Affairs.

The exemption arrangement was at that stage the only option available as it was reasoned that the Immigrants Selection Board would not have been able to cope with such a vast volume of immigration applications, should this be requested from the spouses of returning exiles.

When the Aliens Control Act was amended in 1996, the then Principal Legal Administration Officer (PLAO) guided the Department that the amended section 28(2) of the Act was intended to disqualify foreigners being granted such exemptions, from naturalising as South African citizens. His argument was based on the fact that a person who has an exemption which is of a conditional nature is precluded from naturalising. This obstacle would only be removed if the person would apply for and obtain an immigration permit. Nowhere was this interpretation of the PLAO put in writing. The reality is, however that this was the only method\approach known by the Department, and was used as such. The bottom line thus is
that only if a foreigner has an unconditional exemption in terms of section 28(2) from section 23(a) can she or he in principle qualify for naturalisation.

On the other hand the question must be asked whether agreements of the past should indefinitely be operative. For all practical purposes it can be reasoned that exiles until now had ample opportunity to return to the RSA, and the majority in fact entered between 1990 and the 1994 elections. Those who are still outside the country are there for reasons of their own and the term 'exile' is factually no longer applicable to them. However, due to the fact that an agreement was entered into to accommodate these people, exemptions are still considered. The question now arises for how long the Department must continue granting these exemptions, since the administrative immigration application fee in respect of foreign spouses of South African citizens and permanent residents was abolished with effect from 21 September 1999, in view of a ruling in the Cape High Court of South Africa that this practice is not in line with the Constitution. Consequently foreign spouses of such persons can now free of charge apply for immigration permits, thereby diminishing the need to be exempted.

At present four ministerial cases of spouses of former exiles are being attended to. These matters are in different stages of preparation. However, from the Department's side clarity on which approach should be followed, will be appreciated. Should the Department continue granting exemptions ad infinitum or should the spouses of exiles be requested to apply for immigration permits in the prescribed manner and comply with the provisions of the section 25 of the Aliens Control Act, 1991?

2.4 Closure of airports
2.4.1 Cabinet decided on 8 October 1997 that the number of international airports should be reduced to save on our limited resources and to help combat cross border crime. Ten airports, one for each province except for Gauteng, which got two were named as international airports. They are:
Johannesburg International Airport
Cape Town International Airport
Durban international Airport
Bloemfonten international Airport
Port Elizabeth Airport
Upington Airport
Gateway International Airport (Pietersburg)
Pilanesberg Airport
Nelspruit Airport
Lanseria Airport

Furthermore, Rand Airport would operate as an international airport only within the purview of an international agreement that South Africa has with Namibia.

2.4.2 During 1998, immigration services were withdrawn from 22 airports that previously handled cross border flights. They are:
- Aliwal-North Bethlehem
- East London Ermelo
- Ficksburg Kimberly
- Kleinzee Komatipoort
- Ladybrand Mala-Mala
- Matatiele Messina
- Piet Retief Pietermaritzburg (Oribi)
- Pietersburg Pilanesberg
- Pongola Springs
- Virginia Vryheid
- Welkom Zeerust

2.4.3 The owners of six airports filed representations with a view to retain their international status. The arguments presented in support of international status were weighed up against the amount of resources that needed to be invested by the airports owners as well as the State to make these truly international airports. As a result, Cabinet decided on 4 August 1999 that the Minister of Home Affairs would consider withdrawing immigration services from them too. The Minister approved that five of these airports would lose their international status with effect from 1 January 2000 as well. They are:
- Alexander Bay
- Grand Central
- Rand Airport
- Springbok
- Wonderboom

2.4.4 As far as Richards Bay Airport is concerned the Minister referred the matter back to the Department for investigation whether this airport was not excluded from the Cabinet decision in view of the Lubombo Spatial Development Initiative. This investigation is still in progress.

2.5 Repatriation of illegal aliens by train
2.5.1 This method is utilised to transport large numbers of illegal aliens to Mozambique and Zimbabwe.

2.5.2 Problems are presently experienced in respect of control of the aliens on the train en route, e.g. escapes from the train and even deaths that occur during escapes.

2.5.3 The Department of Home Affairs and the SAPS in consultation with the HRC and Spoornet are investigating various methods to solve the problems as a matter of urgency.

2.5.4 Handcuffing the illegals by means of a light chain, which would prevent them from jumping from windows and thus killing themselves, is one of the options.

2.5.5 Converting coaches to become dedicated detention trains is another option. The HRC is looking at the acceptability in respect of human rights, dignity and safety, whereas Spoornet is looking at the economic viability of these options.

2.6 Current status of exemptions from visa requirements
2.6.1 Cabinet instructed in 1995 that the granting of South African visa exemptions should mainly be based on the principle of reciprocity. The interest of South Africa is kept in mind when a visa exemption is considered. Factors such as the number of nationals from the country under consideration who overstayed the validity of their temporary residence permits or applied for asylum are taken into account.

2.6.2 The Department of Home Affairs is currently reviewing the visa exemptions of certain countries in consultation with the Department of Foreign Affairs. A response from the Department of Foreign Affairs is long outstanding.

2.6.3 On 10 February 1999 the visa exemptions enjoyed by passport holders of the Ivory Coast, Senegal, Egypt and Kenya were withdrawn due to the many abuses of the exemptions by these nationals.

2.7 Interference in migration functions by politicians
It is a common occurrence for members of parliament query decisions made by Home Affairs officials on behalf of foreigners. Ambassadors at South African missions interfere in consular work, often to such an extent that they demand that Home Affairs policy be ignored and take migration decisions themselves. This creates a frustrated and inefficient work environment. Decisions taken by Home Affairs are seldom overturned by such interference. All that is accomplished is the creation of more work for the officials, slowing down service delivery standards.

Despite the fact that the Aliens Control Act and Regulations were approved by Cabinet, politicians often request the Department via Minister or Deputy Minister to make exceptions for individuals. Line functionaries are therefore flooded with Ministerial enquiries and the Department is forced to give priority to certain applicants whilst other people who applied timeously for temporary residence permits have to wait.

During 1999 alone, members of Parliament in 36 cases involved themselves in immigration applications or related residential status enquiries. In one case - to serve as an example - an official was more or less ordered to immediately finalise an immigration application while the said application was not yet complete. The official explained that she could lose her job if she had to comply with the demand. The tone of address is often impolite. aggressive and even threatening.

2.8 Critical staff shortages
During 1998 more than 29 million persons travelled through our ports of entry and the demands on existing staff and physical infrastructure are on the increase. This figure was 26 million for the previous year.

Yet, our ports of entry still function with staff establishments approved in 1994, when 24 million travellers were recorded. The granting of voluntary severance packages and the subsequent freezing of those posts have further eroded these establishments. The general moratorium on the filling of posts in the Department, adds to the crisis.

Refugee affairs

Particular challenges remaining and confronting the sub-directorate
Eliminating the backlog of applications dating back to 1994 with the current staff component of 24. All asylum claims from 106 countries around the world are determined at Head Office, the exception being the applications of Angolan, the Democratic Republic of the Congo (DRC) and those of Somalia nationals.

These applications are processed and finalised in Braamfontein, Durban and Cape Town where Regional Sub-Committees (the equivalent of the Standing Committee) have been established. In preparation for the implementation of the Refugees Act 1998 some Refugee Affairs members have been re-deployed to the Regions. The component is now left with a skeleton staff that is increasingly finding it hard to dispose of the backlog. The sub-directorate has the following vacant posts: 1 ASD. 6 AO's, 1 AC. However. in addition to these vacant posts, the sub-directorate could cope with an addition of: 1 ASD, 3 AO's and 5 SAC's. In total, 2 ASD's, 9 AO's. 1 AC and 5 SAC's are needed. The clerical section is manned by four persons, and to cope, it has been reduced to providing administrative support to the Standing Committee during normal working hours and to doing overtime in order to provide administrative support to the Appeal Board. The regions can also not cope with the influx of asylum seekers into South Africa. On average, 1500 or more new applications a month are lodged. On a daily basis, some regional offices (e.g. Cape Town), have to attend to between 250 - 450 asylum seekers whereas they can only manage a hundred.

A vision for Refugee Affairs for the next live years
Develop a strong research programme in the component that will specifically focus on countries which South Africa receives claimants from. Researchers will compile country profiles, conduct specific claimant research (information on particular claimants e.g. verifying their identity, membership to a particular organisation etc.) write issue papers and so on. The research and documentation programme will make the decisions on claims, consistent.

Establish a training unit in the component whose task will be to train staff in the five Refugee Reception Offices in Refugee Law, Interviewing Techniques and how to access relevant data on claims (searching the internet) etc.

2.9 Increasing litigation against the Migration Component and Statutory Bodies.
2.9.1 All negative decisions by the Migration component, the Immigration Selection Boards and the Refugee Appeal Board, are per se unacceptable to the applicants.

2.9.2 If sufficient funds are available for such persons to brief legal counsel to contest such decisions and even in some cases when Iegal aid is obtained, the Departmerit faces costly litigation in the High Court.

2.9.3 If the matters are not defended, precedents are established, which negate policy and the proper execution of the Act. Even when the matters are decided in favour of the Department with costs, no assets can be found to defray the costs of the Department.

2.9.4 If the costs are recovered, such costs are paid into the general revenue account of the State and are not available to the Department to alleviate the budgetary constraints.

2.9.5 The budget for litigation, which was previously sufficient for the purpose, was exhausted within the first two months of this financial year.

2.9.6 This litigation is also a drain on human resources as functionaries have to attend consultations with counsel.

2.9.7 A further problem in this regard is the fact that neither the Judges nor counsel are familiar with the Act or the practical aspects of its execution. This means that the major part of the burden to ensure that the message gets across correctly rests on the functionaries.

2.9.8 This problem is the reason for the recommendation in the White Paper of the establishment of separate special courts for Migration cases.

2.9.10 This aspect is also applicable to the lower courts where the Department or the SAPS officials charge transgressors of the Aliens Control Act.

2.10 Resource constraints hampering our abilities to carry out functions
2.10.1 Budget deficit of the Department, making it impossible to fill key posts.

2.10.2 The appointment of cheap labour (contract workers), at ports of entry. They are not committed and should not be entrusted with decisions on who may or may not enter this country. The fact that they have no job security makes them more susceptible to bribery and the taking of bribes is more attractive to them.

2.10.3 The physical infrastructure at land border posts is not conducive to proper control over the movement of persons and goods. Structures date from an era when the RSA was isolated and now can not cope with the increase of travellers. Efforts to mordernise these ports are
hampered by those pressing for the imminent implementation of a free market within SADC and the subsequent eradication of internal borders.

2.10.4 Stark differences in levels of socio-economic development between the RSA and our neighbours lead to a constant flow of illegal entrants and their subsequent constant and repeated removal from the RSA by our already understaffed immigration component. This is demoralising and does not constitute effective use of resources.

2.10.5 Poor lock up facilities for the safeguarding of stamps and face value forms such as temporary residence permit labels lead to the constant loss and theft of these at ports of entry. They are then used by syndicates to enter fraudulent endorsements into illegals' passports. The knowledge that lock up facilities are easily broken into may also encourage immigration officers to "lose" their stamps and labels and then report the locker broken into.

2.10.6 The increase in cross border movement, coupled with the increase in cross border crime since 1994 are also factors that place more demands on our limited resources.

2.10.7 Overstretching of human resources coupled with the lack of funds for overtime payment leads to low morale,which further impacts negatively on our effectiveness and erodes the resources we have.

2.10.8 The high premium that is placed on service delivery and the facilitation of tourism and trade compromises our control function as inadequate time is allowed to investigate foreigners on admission to the country.Inadequate staffing levels exacerbate this problem.

2.11 Amendments to the Refugees Act and the Aliens Control Act
2.11.1 It is envisaged to amend certain sections of the Aliens Control Act. The purpose of these amendments would be to improve administration of the Act, remove certain ambiguities and to bring other sections in line with the Constitution.