We, the Association of Immigration Practitioners of South Africa ("AIPSA"), thank you for the opportunity to comment on the draft Bill.

In making this submission, we thought it appropriate to provide a history and profile of AIPSA to you to set into perspective of who we are. This introduction is for informational purposes only and to give you the background to our locus standi for these submissions.

AIPSA was formed after consultation by the Roodepoort Immigration agents (i.e. those registered under the Aliens Control Act) to start the process of the creation of an association, after its existence was mooted in the then draft Immigration Regulations. It was formed by 7 nominees in terms of the Companies Act, 61 of 1973.

Other known stakeholder parties also existed and lobbied the Minister/Department about the formation of an association including a Law Society grouping largely led by Mr Julian Pokroy (a well respected Immigration Attorney), a Cape Town based group led by Ms Julia Willand (an Immigration Practitioner) and a the Roodepoort grouping (led by Craig Kinsman).

The parties caucused amongst themselves and determined that a single grouping be formed out of the three stakeholder groups to form the new association.

On the 25^th April 2003, this was done and the Minister issued letters of appointment in terms of Schedule F (Part A2 (2)) of the Immigration Regulations and thus created the first Board of Directors. The appointments were made to Julian Pokroy (who was also asked to Chair the Board), Julia Willand, Adv. Anton Katz and Craig Kinsman. The first board was required to have a Regional Law Society Representative and a Bar Council Representative that Julian Pokroy and Anton Katz respectively became.

Despite adverse circumstances and no resources, and using their personal resources, the Board formalized itself and started to comply with its mandate. The Department of later gave AIPSA the first grant. AIPSA has made great progress in terms of the Immigration Regulations and organized the national and regional structures, the exams and registration procedures for members. It is currently in the process of ensuring that it adequately representing all its membership who requires the assistance of a representative body with respect to the issues it seeks to take up at the Department of Home Affairs. To this end, Mr Julian Pokroy recently retired as Chairman and and Adv Adv. Anton Katz resigned as a director. The Board of Directors was reconstituted and that Board co-opted further directors to represent the constituency of the Association, i.e. Ms Nasreen Bhat [an Immigration Practitioner], Mr Stephen Khosi [an Immigration Practitioner] and Mr Khusto Ngobeni [a candidate Immigration Practitioner]. The remaining two directors i.e Ms Julia Willand and Craig Kinsman remain for the rest of their term. Mr Craig Kinsman was elected the incoming chairperson and Mr. Khusto Ngobeni was elected Deputy Chairperson.

AIPSA plays an important role on behalf of the Immigration community in South Africa. It is the only body currently registered to process applications and makes recommendations to the Director General on the matters of member registration. It serves as the conduit of information and practices between the Department and the Immigration Practitioners, and between the Immigration Practitioners and the Department.

Apart form our prescribed functions, we are also aim:

1. To be an organized body so that Immigration Practitioners are easily identifiable to assist the Department in dealing with accountable represenatatives.
2. To represent the broad interests of Immigration Practitioners
3. To empower Immigration Practitioners that require assistance.
4. To collectively pool intellectual and organizational capacity.
5. To represent and lobby on behalf of the interests of Immigration Practitioners at the Department of Home Affairs, the Minister of Home Affairs and other stakeholders.
6. To act as a catalyst for processing and dealing with complaints and illegal activities which affect the operation of the Department in their functions and our profession. This includes being either a complainant or facilitating the assistance of complaints with the National Prosecuting Authority, the police and other law enforcement agencies.

AIPSA currently represents more than 180 members of which the majority is based in the Johannesburg area. All members were taken through a screening process in terms of the Immigration Regulations.

These members are organized into regional forums of which all are now being re-constituted into formal Chapters (Branches).

In the creation of Chapters, we created the original forums wherever a significant presence of Immigration Practitioners existed. These areas are, Johannesburg with 82 members, Pretoria with 37 members, Cape Town with 30 members, Kwa-Zulu Natal with 26 members and Bloemfontein with 5 members. Each Forum/Chapter is constituted by members residing or practicing in the area. Each Forum/Chapter has a forum committee and a Chairperson, who serves as the principal executive of the area. The current 5 Regional Chairpersons, together with the Board of Directors, constitute a soon to be formed National Executive Committee.

From this short overview, which we have included to introduce you to AIPSA, we trust that it will be clear that AIPSA represents one of the most important stakeholder groups in the Immigration Act.

We have formulated these submissions following meetings held for such purposes by the Association and by distributing our proposals for comment and approval to all our members.

We kindly request you to consider our comments. We believe that we are the only voice that collectively represents Foreigners, who are not, and cannot, be organized to present their views on how they experience the Immigration legislation and the implementation thereof in our country.

Subject to our specific comments or suggestions below, and viewed in general, we believe that this Bill is a significant improvement on the existing Act, and we commend the thought and effort that was put into drafting it. We also appreciate the memorandum that was provided to assist us in understanding the proposed amendments.

This then brings us to our first comment on the Bill {Preamble, subsection (c), Section 1(xxxi) and (xxxii) and the proposed deletion of Section 7}.

1. It appears that a specific intention of the new Bill is to do away with the need to consult the public or interested parties when it comes to the formulation of Regulations and Policy.

1. While we are well aware of the frustrations caused by the requirement of public participation in the Immigration Act ("the Act"), we believe that eliminating it altogether should be resisted:

1. Immigration legislation in this country has a long history of being a square peg for a round hole. We believe that the public, the foreigners, the "consumers" of the services of the Department of Home Affairs, should have the opportunity to provide their input in improving this situation. Without the benefit of the experiences and perspective of the foreigner it will be naïve to believe that a dispensation can be developed which, to the foreigner, is reasonable, consistent and efficient.
2. It is also inconsistent with Section 33(1) and (2) of the Constitution of the Republic of South Africa 1966, as further embodied in the Promotion of Administrative Justice Act, Act 2 of 2000, and specifically Section 3 and 4 of the Act, insofar as fair administrative action entitles the public to be notified of, and be given the opportunity to respond to, any administrative actions which materially and adversely affects their rights.
3. Substituting this right with 5 individuals who the Minister may appoint to the Immigration Advisory Board is a completely inadequate. The Department’s default position is always one of control, adjudication and enforcement, as is reflected in the criteria set out in Section 4(2)(a)(vi), and it will therefore perpetuate its lack of insight into the needs of the tourists, the investors and the people with the scarce skills which we are seeking to attract.

2. We propose the following:

1. A database is developed by the Immigration Advisory Board, in terms of which interested parties are registered, and are offered the opportunity to make representations on proposed Regulations and Policy prior to their consideration by the Board and the Board presenting its advise to the Minister (Apart from Immigration practitioners, it is envisages that this database should also include interested foreigners, schools, language schools, associations of the model agencies, film and photographic industries, universities, medical institutions and multinationals that are always directly affected by these Regulations and Policies);
2. AIPSA is given a seat at the Board;

3. Since we may well not have the opportunity to provide any comments on any proposed regulations or policy, we are constrained to avail ourselves of this opportunity to offer our comments and suggestions regarding issues that are to be dealt with in the regulations that are to be made in terms of the new Immigration Act.

2. A stated objective of the Immigration Bill should be to bring about uniformity and consistency in the interpretation of the Act and its Regulations by the various offices and representatives of the Department at the various Embassies and consular offices around the world. Few foreigners do not have a story to tell about this issue.

1. A significant contributing factor to the persistence of these inconsistencies was the culture of the Department to be secretive about its policies and its directives on the interpretations.
2. We suggest that it be legislated that all Policies and Directives should be published, and distributed to all the registered interested parties.

3. Another major change in this Bill is the deletion of Section 8 of the Act. It is always tricky to balance the need for efficiency in Immigration Control and Administrative Justice and Human rights, especially when one has to legislate the movement of people. We fully appreciate and support that the Immigration officers must be empowered to deal with the ever increasing illegal immigrant population who exploit every avenue to enter and remain in South Africa. Yet, it is also important to have a system that is reasonable and fair and consistent with our Constitution. Unfortunately, in terms of this Bill, the enforcement of the Act, remains an obscure and draconian procedure that certainly falls short of the Preamble of the Bill which states "immigration control is performed with the highest applicable standards of human rights protection".

1. The Bill should distinguish the different situations where a foreigner may potentially be in contravention of the Act, and clearly set out the procedures to be applied in each situation. We believe that Section 8 should be improved to distinguish between:

1. a person applying for a visa to enter South Africa, or applying for a status, in terms of Section 11 to 23 or 26 and 27 of the Act ("an aggrieved applicant");
2. a person who holds a passport from a country that is exempted from applying for a visa arriving at a port of entry but refused entry ("aggrieved foreigner");
3. a person within the Republic who has or had a temporary status in terms of Section 11 to 23 of the Act or a permanent status in terms of Section 26 and 27 of the Act, and who is suspected of being in contravention thereof i.e. an alleged illegal foreigner ("aggrieved status holder").

2. Different considerations and procedures should apply in each situation. It can hardly be appropriate that a father or four who has had an own business temporary residence permit for four years in respect of an IT company, who is found helping his/her neighbour building a wall, or who simply forgot to renew his permit timeously, should be subjected to the procedure of arrest, detention pending the payment of a fine and the agreement to voluntarily depart, and then review procedures from abroad, as currently being applied. It is quite another story when a person is seeking to enter a port of entry with a counterfeit passport and these situations should be dealt with accordingly.
3. We also wish to suggest, for various reasons that we will revert to in this document, that the Director General should delegate the function of reviewing certain decisions to a specifically appointed committee in each major region ("Review Committee"), that consists of an appropriately senior regional representative of the Department, an appropriately experienced lawyer, an appropriately experienced chartered accountant, and a nominated representative of the regional forum of the Immigration practitioners. They must be willing and able to meet at short notice, to consider urgent reviews by aggrieved applicants, aggrieved foreigners and aggrieved status holders. We also wish to suggest that the Review Committee be mandated to entertain personal representations by those people who do not have the access to or the skills to formulate their representations in writing and/or in English. We suggest that these meetings should be minuted and decisions, together with the reasons for the decision, should immediately be forwarded to the Director General or the Minister. Any of our suggestions in this document that refer to a review by the Director General, should be read to suggest a review by the Review Committee.
4. In terms of Section 33(5)(b) and Section 34(1) of the Act and the Bill, if any foreigner, with or without a status, is suspected of being in contravention thereof, he/she or she may be arrested, detained and deported by an Immigration officer without a warrant.

1. A foreigner is then afforded the right embodied in Section 8(1) {This is also inappropriate as 8(1) clearly anticipates a decision, while when a person is served with the notice in Annexure 31, a decision has already been made}, which would now become 8(1)(b). If he/she admitted the contravention, he/she would not be detained and would be allowed to appeal the decision on terms of Section 8, but that if he/she disputed the contravention, he/she could still appeal it in terms of Section 8, but then while remaining in detention. If it seems incredulous, we have experience of it being applied in this manner and we invite you to look at the wording of Annexure 31 of the Regulations, which was used to justify this course of action. This is obviously coercive and not fair and not consistent with fair administrative justice.
2. We believe that any foreigner that is suspected of a contravention of the Act must at the very least be treated equally to a suspected low level criminal offender and the Immigration Officer must be entitled to require an "Immigration Bail" for an illegal foreigner. If any foreigner has a status, but is suspected of being in contravention thereof, and he/she or she is able to pay a fixed security deposit (or provide a written indemnity by a South African citizen) and provide proof of residence at a physical address (equivalent of bail) he/she or she should be granted a Immigration Bail, subject to any other necessary conditions such as regular reporting at an office of the Department, and thereby have the opportunity to appeal the decision, or make representations to the Director General, without being threatened with detention. We submit that this approach would be consistent with Judge Fagan’s recent report on our prisons, that our prisons and detention facilities are overcrowded, and that it is prudent to consider alternative means to detention whenever possible. We also believe that a person, who then wants to pursue his remedies in terms of the review procedures, would have to timeously pursue his review, and strictly comply with the conditions of his bail, failing which the bail will be forfeited and he/she will then be deported. We believe that this will be an appropriate procedure that will generate a lot of income for the Department and will discipline applicants in a suitable way to maintain the validity of their residence in the Republic.

5. If a person is seeking to enter or apply for a status, Section 8 of the Act allows the applicant to be informed of a potentially adverse decision and to make representations, i.e. to supplement his/her application or to correct any misunderstandings regarding the application.

1. In terms of Section 8 of the Bill this procedure is no longer available and there are no other provisions for this situation.
2. We believe that in terms of our Constitution and the Promotion of Administrative Justice Act, the existing remedy is a fair administrative procedure that should be retained.

6. Notwithstanding the rights afforded a foreigner in Section 8(1)(a) of the Bill, it is without substance and provides no assurance that any foreigner will receive a timeous hearing of his/her review, and consequently, of any fair administrative procedure. Even if the Director General on review overturns a decision of an immigration officer, the person would in most cases have been sent back home and the damage done.

1. Most foreigners arrive via airplanes that often arrive after hours and on weekends. Immigration Officers make mistakes and tourists’ passports are being stolen even before they can report at the Immigration counters;
2. Being informed of your right to request a review, and to hope that your review might be considered before the airplane leaves again is cold comfort. We have to face the reality that the Director General or any person currently delegated with the authority to review the decision is not likely to be contactable or available or willing to review the decision after hours. (The writer has personal experience of attempting to review a decision of an official who refused an emergency travel document to a 19-year-old South African girl on a trip with her grandmother on a Saturday morning. It took 69 phone calls to more senior Immigration officers, the Deputy Regional Director, the Regional Director, the premier of the Western Cape and eventually the Director General over a period of nearly 12 hours, just to get an obviously ill considered decision reviewed. Some of the above avoided our calls, switched their phones off or simply refused to take a decision).
3. Section 8(2)(b) is also not clear as it does not give any guidance as to what happens to the applicant of a review of an Immigration officer’s decision when the 3 days provided for lapses. It also is not clear when the applicant is reviewing a refusal to allow entry, whether he/she is to be detained or not.

7. We accordingly suggest that:

1. An aggrieved applicant should be informed of a contemplated adverse decision, and the reasons for the contemplated adverse decision, prior to any decision having been made. The applicant should bee afforded an opportunity to supplement or correct any deficiencies in his/her or her application, or make any representations, within a period of 10 days. If the decision, which should be made within a period of no more than 10 days is still adverse, the person should have the right to, within 10 days, apply to have the decision reviewed by the Director General, who shall give his/her decision within 10 days.
2. An aggrieved foreigner, should be informed of the decision by the Immigration officer, and be afforded the opportunity to apply for a review of the decision by the Director General. Should the review not be considered before the conveyance leaves, the person should be entitled to enter, subject to the proposed "Immigration Officer Bail" suggested above. If an Immigration officer believes that the aggrieved foreigner is a potential charge to the community, it would then be his/her responsibility to ensure that a decision is received from the Director General prior to the departure of the conveyance. If the Immigration officer grants the aggrieved foreigner the bail, he/she is entitled to the rights suggested for the aggrieved applicant in (g)(i) above.
3. An aggrieved status holder who receives notification as set out in Section 10 of the Bill, or is reasonably suspected of being an illegal foreigner, who wants to avail him or herself of the opportunity to make representations to the Director General, or to review the decision of the Immigration officer, should be afforded the opportunity to avoid detention, if threatened, by posting the Immigration officer bail, pending the procedure set out for the aggrieved applicant in (g)(i) above.
4. Any failure, within the discretion of the Regional Chief Immigration officer, to meet the bail conditions would then lead to a forfeit of the right to review and a confirmation of the adverse decision.
5. We respectfully submit that the Director General is specifically empowered to review a decision for "good and reasonable cause", or where the confirmation of the decision would lead to "undue hardship". For example, the undue hardship that is caused when a family loses their status after many years in the country due to an oversight, or due to the lapsing of a permit as a result of omitting to submit a periodical proof or certificate in respect of a work permit or a study permit, can easily mean that the family is abruptly uprooted, the children’s education and social circumstances is irreversibly prejudiced, and all the financial and psychological consequences that follow such a travesty.

8. We respectfully submit that the current practice of arresting, detaining pending payment of a fine and agreeing to a voluntary deportation, to be unconstitutional. Fines and deportation notices are nearly always imposed together regardless of the nature of the transgression. There is no benefit for any foreigner who comes to the Department to regularize any transgression of the Act. At best, arbitrary policies are adopted that a 30 day overstay is excusable but a 35 day overstay is deportable. No-one ever gets notice of these policy decisions and they are imposed, thus denying Immigration officers any discretion, forcing them to enforce sanctions that they cannot reasonably justify to the foreigners, further demoralizing the Immigration Officers.
9. It would seem far more appropriate to allow Immigration Officers to, within parameters, and within their discretion, to impose fines when minor transgressions of the Act are committed, to require a bail to be paid when major transgressions have been committed.
10. The deletion of Section 8 also appears to take away any jurisdiction of the Magistrate’s Court to interpret the Immigration Act or review any decisions in terms thereof. Should the idea of a Review Committee find favour, this may be accepted, but should the review committee not be an acceptable mechanism for any reason, we respectfully submit that the Magistrate’s Court should be empowered to interpret the Immigration Act or review any decisions in terms thereof. Should the Magistrate’s Court not be empowered, this would simply discriminate against those aggrieved persons who do not have the finances to launch review procedures in the High Court.
11. Finally, in respect of the issue of affording foreigners the highest standards of human rights, Section 41(2) of the Bill seeks to criminalize, or "deal with" as set out in the Memorandum on the objects of the Immigration Bill, legal representatives that assist a person to evade, or interferes with, the process whereby Immigration officers are empowered to interview, arrest and detain a person suspected of not being entitled to be in the Republic. It is difficult to imagine on what basis any legal representative can "assist to evade" or "interfere" in this process in any way that would not in any event be illegal or unprofessional, and for which there are already appropriate sanctions and procedures. Would it constitute "interference" for a legal representative to insist that he/she be present when a client is being interviewed? Would it constitute "interference" if a legal representative advises a client not to answer any questions until he is present at the inquiry? Our constitution guarantees these legal rights, but to empower an Immigration officer to charge or threaten to charge an attorney with interference, whatever it may constitute, is to threaten the foreigner’s constitutional rights. We respectfully submit that this section is superfluous and should be deleted.

4. In terms of the memorandum on the objects of the Immigration Bill all references to the Chartered Accountant certificates are to be deleted, as is evidenced by the deletion of Section 1(a)(1)(v) of the Act and the further references in the Bill. We respectfully disagree that the requirement for Chartered Accountant was cumbersome and not very useful.

1. It is our experience that it is far more cumbersome and frustrating for a foreigner to try and present proof of his/her or her, sometimes complex or necessarily structured, financial circumstances to an immigration official at a counter.

1. It was our experience with the Aliens Control Act that often the documents that the foreigner can produce to support his/her compliance with the financial requirements in the Act are not understood. Often a person’s finances are structured. This is especially the case where foreigners are investing in businesses in South Africa. It is a serious problem as even with the current Immigration Act we have experience of a Chartered Accountant certificate setting out a yearly income not being accepted because it has not been divided by 12 to match the monthly income as provided for in the Act.
2. There will also be less certainty that the documents the foreigner presents will be to the satisfaction of the Immigration official at the counter. This has a very real consequence as a missing document means that the person has normally wasted an entire day waiting to get to the front of the line and then has to get the required document and spend another day in the line.
3. It also severely complicates the desirable objective to have a simplified procedure that is consistently interpreted and applied by all the offices of the Department.

2. Many foreigners are not comfortable to present the Department with all their financial details. It creates an opportunity for, and exposes them to, identity theft, extortion and fraud, considering the fact that all their personal and financial details, including bank account details and photographs are in one place.
3. There is also little or no control, and certainly no guarantees by the Department that the information will remain confidential once it is handed over at the counter. We respectfully submit that it would probably also be wise for the Department to divest itself from the potential liability for a person’s financial information. Chartered Accountants have the systems and the duties, the sanctions and the insurances in place to assume this risk.
4. We also found that Chartered Accountants were efficient in producing these certificates and that the fees were not at all out of context to the other costs involved in an application.
5. We respectfully suggest that, should the Department deem it necessary to remove the Chartered Accountant certificate as a requirement for a work or a business permit, that it at least provides for those who nevertheless choose to present a Chartered Accountant, that these certificates will be accepted as sufficient proof in terms of any financial requirements set out in the Bill.

5. Together with the issue of Chartered Accountant certificates, we also wish to suggest that the Department resolves to accept certifications of accredited salary benchmarking organizations. This would divest the Department of allocating administrative resources to determine the relevance of a particular applicant’s salary level.
6. In terms of Section 1(1)(xxxvi) of the Bill, (the definition of "spouse") the requirements to prove the relationship have been deleted, and are to be prescribed in terms of regulations. We err on the side of caution to at this stage suggest that the Regulations should consider alternatives to the notarial contract as confusion previously reigned, since the relevant deeds offices were not registering the notarial contracts of co-habitants, although the Department required this.
7. It is suggested that a provision be included in the definitions clause or in clause 46 of the Bill, which defines "Immigration Assistance" as being: "as any remunerated activities in respect of canvassing, completing prescribed application forms, accompanying applicants to or at the offices of the Department, consulting applicants, offering advise on immigration matters, lodging and uplifting application results". Immigration assistance can then be substituted for the current "conduct the trade of representing another person in the proceedings and procedures flowing from this Act". If the activities are properly defined, it would be possible to limit the activities of people who are currently circumventing the requirements to be a registered Immigration Practitioner.
8. In terms of Section 2(a)(1)(xliii) of the Bill, the Definition of Work has been amended.

1. We welcome this new definition, as it is more understandable and accurate.
2. The new definition however, closes the door on interpreting the Act in a way which allowed photographers, models, professional sportsmen and women, journalists, musicians, consultants, advisors and international businessmen, to work in South Africa, without being required to go through the process of applying for, and awaiting the outcome of, a work permit.

1. These foreigners cannot comply with the traditional requirements of an application for a work permit as they do not have South African employers and they are not in South Africa to conduct their own business. They also do not have the opportunity, or can ill afford any delays or uncertainties, as they are often required to travel to South Africa from countries that are not their home countries and are often required to travel at short notice. Sometimes their agents here pay them in South Africa, or their foreign employers pay them.
2. We suggest that the Minister is empowered in Section 7 of the Bill to regulate that these identified classes of professionals who are visa exempt, to be allowed to conduct their business with an appropriate endorsement to conduct their profession or their business, and that those who are required to apply for visas, are similarly granted visas to travel to South Africa to receive such a permit. We suggest that these permits should be granted for periods up to 6 months, as this is consistent with most of their requirements.
3. Alternatively, we suggest that a new category of work permit is established for professionals and that the requirements and limitations of each group of professionals are then determined by Regulations from time to time.
4. We point out that many professionals, like foreign Industry consultants, Japanese lawyers or Norwegian Accountants, are not provided for in terms of any category.
5. It is respectfully submitted that the Film and photographic industry, which has been recognized as a major growth industry for South Africa, will be severely prejudiced, or rather simply obliterated, should all photographers, film directors, models and actors be required to go through a process to apply for a work permit, and await the outcome of such an application, prior to their arrival. These people cannot afford the delay or the uncertainty and will simply go elsewhere in the competitive global marketplace.

9. Section 10(7) is a welcome provision. There are however practical problems:

1. Often extensions are required to existing permits while the outcome of applications to change the conditions of existing permits are being awaited, or applications for permanent residence permits are being awaited.
2. The uncertainties are unfortunately a direct consequence of the Departments difficulties in processing permits within predetermined time frames.
3. Any provisions, whether contained in the Act or the Regulations or policy, which has the effect of making a foreigner pay more as a result of the Departments delays is not reasonable and not fair.
4. We suggest that until the Department can meet its own time limits, all extensions granted in respect of applications that are required in order to await the outcome of other applications, be granted, not for a specific period, but are granted until the outcome of the other application is received.

10. Section 15(4) of the Bill appears to generously allow a foreigner 2 years within which to invest the money in the business.

1. While there are some cases where it may take a foreigner two years to be able to actually invest the intended amounts in South Africa, we are of the view that by allowing a foreigner two years to invest, all foreigners will only invest the money as late as possible to minimize its risk, and in the meantime is trading away in South Africa without making the direct investment that our country requires.
2. We believe that the Department should require the holder of a business permit to submit an affidavit within 9 months to confirm that the investment has been made, and if not, the holder should apply for an extension for the period within which the investment will be made.

11. Section 15(5) of the Bill appears to contradict Section 10A(1)and (2) of the Bill. It also is difficult to understand why any holder of an own business permit should not as a matter of course be allowed multiple entries. We respectfully submit that Section 15(5) should be deleted.
12. With respect to the Relatives permit in Section 18 of the Bill, we suggest that this opportunity is used to clarify whether immediate family includes the spouse of a brother or sister of a South African citizen or Permanent Resident.
13. With respect to the unamended retired persons permit in Section 20 of the Act, we suggest that this opportunity is used to clarify the inconsistency between:

1. the financial requirements in respect of a temporary retired persons permit in terms of which the financial requirements have been required per person, regardless of whether they are married or in a spousal relationship; and,
2. the financial requirements in respect of a permanent resident retired persons permit, where the financial requirements have been required per couple.
3. We suggest that the correct position is that the financial requirements should be required per couple.

14. In respect of Section 19(1) and (2) of the Bill, it is clear that the Bill is structured to allow an application for a general work permit only in circumstances when a quota work permit is not available. We support the objective of this provision.
15. We are however oncerned about the implementation of this provision as there does not seem to be a system in place in terms of which the Department can monitor when these quotas have been filled.

1. This type of permit anticipates a real time electronic system throughout the Department similar to booking movie seats, which at this stage seems unlikely given the inadequate resources afforded to the Department by the Government. For example, when an applicant is considering submitting an application, how would the applicant know whether there are still unfilled quotas in his/her particular class or category, or, that by the time his application is considered, that there are still positions available in the quota of the category in which the application was made.
2. A further question arises as to whether the quotas are going to be allocated on a regional or a national basis. For example if a disproportionate amount of applicants in a certain class apply in a certain area, will other areas be prejudiced.

16. We suggest that foreigners should still be allowed to apply for a General Work permit notwithstanding the fact that the category might be available in the Quota, as it is our experience that notwithstanding the quota categories, many foreigners have skills or positions of trust that uniquely suit them to the needs of a particular South African employer, and an application for a general work permit will be a more secure proposition than being required to mould an application into an available class or category of quota, or alternatively having to re-apply if the quota had been filled while the potential employee has been arranging his/her affairs and preparing his/her application.
17. In respect of Section 19(3) of the Bill, we note the requirement of "satisfactory proof". Since this is a function that would certainly be delegated in terms of Section 3(2) of the Bill, this discretion is not likely to be applied consistently in the various regions and offices and over time. We re-iterate our proposal that it be legislated or regulated that Chartered Accountant certificates be accepted as satisfactory proof, to avoid the uncertainty about which documents will satisfy the requirement of satisfactory proof.
18. In respect of Section 19(5) of the Bill, we note that the inter-company transfer permit be limited to 2 years.

1. We believe that this period is never adequate, as most companies that require their South African interests to be managed by certain of their own employees require at least 4 years.
2. We suggest that the period be extended to 4 years, as this would simply accommodate the needs of those investors in our economy, increase the security of their tenure in South Africa, and also provide a more realistic timeframe within which the desired transfer of skills can take place.

19. In respect of Section 21(3) of the Bill, we note the requirement that a corporate permit can only be withdrawn for "good and reasonable cause". While we assume that this provision is simply stating the obvious, we respectfully submit that it would be consistent to also set the same conditions to all the provisions where a person’s permit is being withdrawn as allowed for in Section 10(9) of the Bill, and even more so where a person is determined to be an illegal foreigner and is arrested and detained, as allowed for in Section 34(1). It is noted that Section 40 (1) requires "reasonable grounds").
20. In respect of Section 22(b)(iii) of the Bill, we note the improved provision in respect of exchange permit holders.
21. In respect of Section 26(a) of the Bill, we note that Direct Residence for a work permit holder is limited to a work permit holder in terms of "this" Act. We respectfully submit that in view of the fact that the current Act has only been operative for the 2 years and that this proposed Act is apparently also going to be comprehensively amended again, that Direct Residence be available to those who have been the holder of a work permit since a certain date, for example 1 January 2000.
22. In respect of Section 26(c) and (d) of the Bill, we note that the Bill perpetuates the distinction in the Act, in terms of which it provides that the parent of a child under the age of 21 does not have to give make any undertaking of financial support for the child, while the parents of a child over the age of 21 must give an undertaking of financial support on behalf of that child. If anything, this seems to be the wrong way around. We respectfully submit that these provisions should be consolidated and should the child of a citizen seek permanent residence in South Africa, the parent of that child should be able to provide an undertaking to financial support in respect of that child, for a period of 5 years or a period of 5 years after the child turns 25, whichever is the later.
23. In respect of Section 27(c)(ii) and (e) of the Bill, we again note the requirement of proof being given "to the satisfaction of the Director General". We kindly refer you to our contentions in paragraph 17 above.
24. In respect of Section 28(a) of the Bill, we suggest that should a person who holds permanent residence be convicted of an offence, equivalent to any of the offences listed in Schedule 1 or 2 in any other country, this should similarly entitle the Department to withdraw such person’s permanent residence. We respectfully submit that we don’t need any foreign criminals in South Africa, even if they managed to get permanent residence in some way or other.
25. In respect of Section 28(b) of the Bill, we note that the a failure to comply with a condition of a permit by the Permanent resident permit holder, evokes the same consequence as a Permanent resident permit holder who commits a Schedule 1 or 2 offence. We agree that the ultimate sanction of a failure to comply with a condition of a Permanent residence permit should be the withdrawal thereof, however it becomes imperative that any aggrieved status holder should be afforded a proper opportunity for a review of such a decision and the "undue hardship" should be considered.
26. We specifically support the provision in Section 29(1)(f) of the Bill. We also specifically support the provisions of Section 45(13) of the Bill.
27. In terms of the provisions of Section 30, we wish to submit that (as is taken into account in the current regulations [Regulation 33(8)] as to whether a person is of good and sound character for purposes of Permanent residence, that "a person who is not in the habit of fulfilling his or her legal obligations" should also be included as a person who may be declared to be an undesirable person. We respectfully submit that too often, tourists, or other temporary resident permit holders depart from South Africa without settling a bill, or, for example, having completed their Stills photographic production in South Africa, fail to pay the balance of the account due to the South African companies they contracted with. It is very expensive to sue such a person in their own country and the South African party has no other remedy. We believe that the South African person or company should be entitled to make representations to the Director General to have such a person declared an undesirable person, subject to the prescribed procedures as set out in the current Regulation 35(1).
28. We note the provision in Section 40 of the Bill and support the amendment.
29. We note the provision of Section 41(2) of the Bill and refer to clause 3(g)(i) above and reiterate that the provision as it currently stands is unconstitutional and unnecessary
30. We note the provision in Section 43 of the Bill but respectfully submit that in the past there has been considerable debate as to whether a permit which "expires" [or "lapses" in terms of Section 19(3)] then becomes null and void when it is allegedly violated, or when a final determination is made about the alleged violation.

1. It has been argued by the Department in the past that once a permit has expired it cannot be extended and a fresh application has to be submitted to re-acquire a status in South Africa.
2. We believe that the consequences of an expired permit must be clarified, and in this regard, we believe that the Director General should be specifically empowered to extend an expired permit should his discretion be exercised in favour of an aggrieved status holder. For example, a situation can be imagined where the work permit holder for the past 4 and a half years fails to submit the annual proof timeously, his permit lapses and he has to work another 5 years before he can apply for Permanent Residence.

31. We wish to propose that Advocates and Attorneys that provide Immigration Assistance be required to register as Immigration Practitioners in the manner prescribed by the Regulations and become part of AIPSA. The relevant Law Societies should alternatively be required to maintain a list of registered Immigration Practitioners. This would be consistent with international practice, and would ensure that when the Department of Home Affairs can deal with a single body when communicating with the practitioners.
32. We also wish to propose that providing an addition subsection to the unamended section 46 of the Act, perhaps a section 46(4) that should read "Anyone who offers immigration assistance and who is not a practicing attorney or registered as an immigration practitioner is guilty of an offence in terms of Section 49(6)." This thus enforce the provisions of Section 46 and assist the Department in dealing with accountable practitioners as opposed to individuals who are seeking Foreigners and who are in no way accountable for their actions.

Should you have any queries, or should you wish to allow us the opportunity to make any more representations or suggestions regarding any particular issues raised in this comment, we would gladly oblige.

Yours faithfully

AIPSA

Further to our representations submitted herewith, we kindly request your indulgence for two further point we wish to raise in relation to the new Bill.

Establishing legal jurisdiction over Foreigners to recover money owing and settle disputes.

In view of the fact that more and more Foreigners are coming to South Africa to do business and contract with South African residents, the phenomenon of certain Foreigners leaving South Africa without paying their invoices after they have left, has become more pronounced. In this regard, it appears to be especially those who enter for short periods, as currently provided for in respect of Foreigners from visa exempt countries, who are entered on suitably endorsed visitors permits to do photographic shoots, purchasing local arts and crafts for resale abroad, utilizing South African service providers in a variety of industries. As a result, the South African resident must pursue the Foreigner in his home country for legal relief, which is not only very difficult but also very expensive.

We wish to suggest, that any Foreigner who wants to enter South Africa to do business, must, as a condition to the issue of his permit, whether it is a work permit or a visitors permit suitably endorsed, consent to the jurisdiction of the local or provincial division of the High Court of South Africa, which would otherwise have jurisdiction over the matter. In terms of the Supreme Court Act, 59 of 1959, and in the commentary thereto, it is proper for our Courts to acquire jurisdiction over a foreigner if he has consented to the jurisdiction of the Court, provided the claimant is not also a foreigner and provided that the contract or any other cause of action falls within the jurisdiction of the Court.

We submit that this would be a great relief to South Africans contracting with Foreigners, and it would further create a social control by South Africans as they will insist on their contracting party in South African presenting a valid permit, prior to concluding any agreement.

The current provisions in the Act regarding spouses have left the doors wide open to Foreigners to acquire permanent residence in South Africa, where they would otherwise not qualify, not even for temporary residence. The first generation of permanent residence recipients, who hardly know who their spouse, will soon open the doors even wider to the next generation of Immigrants. We strongly believe that more thought must go into the Act and regulations to prevent the abuse of this category.

We believe that an applicant for permanent residence on the basis of being a spouse of a South African citizen must be subject to the same requirements as Direct Residence in Section 26 of the Act in respect of holders of a work permit. i.e. a person can qualify for permanent residence after being the holder of a temporary residence permit as spouse for a period of 3 – 5 years. This will place the onus on the applicant to "prove", not only once, but at least twice, and over a period of at least three to five years, that he or she is legally married to a South African citizen.

In this regard, the prescribed supporting documents should also be more carefully considered. As we submitted earlier, a notarial contract is a very unsatisfactory requirement. We submit that apart from getting the affidavits by the spouses when applying for temporary residence, affidavits from the witnesses to the marriage ceremony should also be required, and where these witnesses are not family of the South African citizen, further requirements should be set. One can also take note that in terms of the Financial Intelligence Centre Act 32 of 2001 ("Fica") requirements, it is nearly easier to get permanent residence than it is for a South African citizen to open a bank account. We therefore submit that the Fica requirements, such as household bills, municipal accounts and proof of lease or ownership of accommodation should also be prescribed requirements.

Should you have any queries, or should you wish to allow us the opportunity to make any more representations or suggestions regarding any particular issues raised in this comment, we would gladly oblige.

Yours faithfully

AIPSA