3 June 2003

Dr M G Buthelezi

Minister of Home Affairs

8^th Floor 120 Plein Steet

Cape Town

Honourable Minister

After studying the Draft Immigration Regulations as gazetted on 25 April 2003, the PC on Home Affairs is of the opinion and concerned about the impression that some of the regulations that were published by the Department are not required in terms of the Act. Other regulations seem to fall outside the scope of authority that was granted/created by the Act.

At our Committee meeting of Tuesday, 3 June 2003, it was agreed that we would provide you and the Immigration Advisory Board with a list of concerns that the Committee has regarding the Draft Immigration Regulations. Hereby please receive a list of the areas of concern that, in the opinion of the Committee, are inconsistent with the Immigration Act.

The areas of concern are:

The definition of "Department" in the regulations differs from that in the Act. The Act refers to a national Department, whilst the regulations makes provision for regional structures, which is not provided for/required by the Act.

The definition of "Region" is unnecessary, as the Act does not require regional reform.

The regulations 1(g & h) and 14(2,3&4) deals with the restructuring of the Department into regions and it allocates substantial powers to regional directors. Here are some of the Powers:

• Carries the primary responsibility of administering and applying the act and regulations.
• Shall express the decision-making power of the department and may sue and be sued in the name of and on behalf of the department.
• May represent the department in court.

An application shall be lodged at the place of application. In this regulation the places are quoted as possibly being a mission, regional office, port of entry and the department of foreign affairs. This section needs to be examined closely in respect of elimination of the need for regional offices.

There are clearly two distinct categories of Immigration Officers described in this section of the regulations and they are either officials of the department of Home Affairs or they are privately contracted individuals approved by the department of Home Affairs. The Act defines immigration officers as "an officer of the Department, or another person having the prescribed requirements, appointed as such from time to time by the Department and, for purposes of this Act, includes a person employed in, or contracted by, the department who has been authorised by the Department to exercise certain powers and perform certain functions in the name of and on behalf of the Department. In effect the Act allows for the appointment of an I/O who is not in the employ of the Department. We have to decide if this is good practice given the monitoring and enforcement functions and powers of the I/O. However this section of the regulations capitalises on the fact that these people could be contract employers and assigns certain powers to them.

(1)Immigration officers (I/O) who are Home Affairs officials are appointed by the DG or a Regional Director, with the DG having the power to revoke any appointment made by the Regional Director. Once again the designation of Regional Directors and their powers are brought into play here.

(2)(a) Those appointed I/O who are officers of the department could have all or some of the powers or functions given to them in terms of this Act after they have been successfully tested on their knowledge of the regulations. How? Are there any approved testing sites or approved curriculum? Will the testing be objective?

(b) The appointment may be of an individual or a category? How can an appointment be of a category?

(3) Non departmental persons according the description in this subsection may be an I/O only if necessary for execution of the Act and must comply with subsection (2). Who deems what is necessary and when is it necessary? We leave ourselves open to abuse and the corruption risk potential is very high.

(4) I/O are contracted through a tender process and are accountable to one or more Regional Directors and or DG as well as the contract conditions of the department.

We always go out of our way to promote this country as a safe and friendly destination for overseas tourists in an attempt to contribute to our economy. The fees that are charged for people who enter or want to leave the country outside working hours will definitely discourage foreign tourist to come to our country. Are the ports of entry not supposed to be open 24 hours seven days a week?

Regulation 10(2)(a) and (b) allows the Department to admit a foreigner without a visa even if s/he is from a country normally requiring a visa. Nowhere is this waiver provided for in the Act, and opens the door for corruption. The wide discretionary powers given to the department is likely to result in discrimination and therefore is open to court challenge.

Regulation 11(2)(a) and (b) requires that applicants pay an additional fee (either R10 000 or R6000 depending on the permit) if the Department verifies certain facts as opposed to a Chartered Accountant (CA).

The Immigration Act does not require the charging of an additional fee and during the parliamentary process on the Immigration Bill, no mention was made of additional fees.

The Committee is of the opinion that the amount of the additional fee is exorbitant and out of proportion with administrative action required. In most instances verification of facts is based on the assessment of documentation, which is a simple straightforward procedure.

Why would the Department declare only 60% of the training fund? Why not the whole amount? Article 11 of the Public Finance Management Act (Act 1 of 1999) requires that all funds received by government departments should be deposited into the National Revenue Fund. The department is contravening the law by this clause in the regulations.

Regulation 13(2) and (4) could have monetary implications for other Departments through the actions of the Ports Manager and we do not believe that this is acceptable.

1. Delegation of Director-General’s powers

Regulation 14(2) provides that the Director-General (DG) may delegate any of his/her powers, including those delegated to the DG by the Minister.

This is inconsistent with section 3(1)(l) of the Act, which requires that the delegation of functions be approved by the Minister after consultation with the Board.

2. Restructuring of the Department/Regions

Regulation 14(3) provides for the restructuring of the Department into regions. Regulations 14(4) sets out the responsibilities of the Regional Directors.

The Committee is of the opinion that the Immigration Act that was passed by the Committee does not call for the restructuring as set out in Regulation 14.

The functions/powers of the Regional Director contradicts the Act, especially when read with definition of "Department" in the Act. For example, section 3(1)(h) empowers the national Department to represent the State in court proceedings. However, this is entrusted to the Regional Director/region in terms of regulation 14(4)(d).

The functions of the IAB differs from those set out in Section 5 of the Immigration Act. There are new functions created by the Regulations that were not legislated by Parliament.

Regulations 22.10 provides for applicants to pay an additional fee when making this application. The question is why should the applicant pay an additional fee? Politically this might be damaging to the country in particular in relation to African scholars coming from other African countries.

Regulation 28(3) provides for the imposition of a 2% training fee. The Act does not call for such a fee.

The Committee is of the opinion that the required amounts as set out in this regulation are unreasonably high.

This regulation allows for the transfer of work permits from one individual to another. How is this compatible with the Act?

The Committee would like to know how this section would be implemented together with the relevant section of the Criminal Procedure Act.

The issue of border control is beyond the mandate of the Department of Home Affairs. It is the constitutional mandate of the South African National Defence Force. Chapter 11 (section 200) of the Constitution categorically states this.

Yours faithfully