In Re:

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SUBMISSIONS

BY THE IMMIGRATION LAW SPECIALIST COMMITTEE:

LAW SOCIETY OF THE NORTHERN PROVINCES

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INTRODUCTION:

1. The Immigration Law Committee of the Law Society of the Northern Provinces [referred to below as ‘the LSNP’] records its appreciation to the Portfolio Committee for being allowed this opportunity of presenting its perspectives on the Immigration Act Amendment Bill.
2. The LSNP views itself as being engaged in an ongoing constructive engagement with the various stakeholders in the wider migration debates for the betterment of the Republic, the public and its members. The LSNP hopes that the Portfolio Committee will view the comments collected below, in that light.

 

PRELIMINARY OBSERVATIONS:

3. The LSNP notes that there are two (2) principal reasons being given for the pending amendment to the Immigration Act, 2002 [referred to below as ‘the Act’].
4. The first is the Department’s stated need to engage in ‘essential maintenance’ to improve technical aspects of the Act which could be effected without engaging in wider policy debates - it being understood that a more significant amendment will be developed in due course.
5. The second stated need is to address various concerns raised by the State Law Advisers in order to ensure that new regulations to the Act could be properly put into operation.
6. The LSNP observes, by way of general comment, that it has been the experience of our members and their clients, that in many respects the present Act constitutes a significant improvement on the previous Act - the Aliens Control Act, 1991 [referred to below as ‘the ACA’] and that it has been found to be more investor-friendly.
7. This is not to say that the Act does not have its flaws - indeed, some are quite significant. The LSNP supports the need for sorting out both some of the more technical aspects as well as some of the legality questions.
8. The LSNP also supports the need for a longer term review of the current legislation. Such a review should, ideally, be premised upon a more empirically sound footing, there being a desperate shortage of accurate information about the role of immigration in the South African economy generally.
9. The LSNP notes for the record however that, in our considered opinion, the Bill does also contain proposed amendments which do constitute significant policy amendments or developments.
10. The LSNP is all too aware of how central a role our immigration legislation plays in attracting inward investment and that immigration legislation, more than in many other areas, is geared to facilitate the workings of the private sector.
11. As a further general statement therefore, the LSNP would have preferred to have seen the policy amendment components of the Bill being taken up in the next proposed amendment thus allowing time for greater consideration of their possible impact on both the business and the wider community.

 

THEMES OF CONCERN:

12. In making its present submissions, the LSNP found it convenient to try and address the bulk of its concerns thematically (in no order of priority) and thereafter to address miscellaneous issues.
13. Notwithstanding the length of this document, the LSNP records that this does not pretend to be an exhaustive analysis or study of the Bill. There has simply not been enough time to assess all the implications of the proposed amendments.

 

THE REDUCED ROLE OF CIVIL SOCIETY IN THE ACT

14. The first such theme is the apparent proposed diminution of the role of civil society in the operation of the Act and the development of policy.
15. In summary, the Bill seeks to achieve this principally through -

(a) the repeal of the section 7 regulation-making process; and

(b) the ending, to a very large degree, of the formal consultative role of the Immigration Advisory Board [referred to below as the ‘IAB’] for the Minister.

Regulation-making and the public process:

16. The Bill proposes a significant reversal of the transparent process currently provided for in the Act.
17. Unfortunately, the Memorandum to the Bill does not explain why it was seen necessary to completely eliminate the public consultation process.
18. The LSNP is aware of and shares the concerns that the two-tiered public consultation process currently provided for in the Act for the development of Regulations, resulted in an extremely time-consuming process to effect amendments which protracted process was not always justified. Certainly, this procedure dramatically slowed down the ability of the Minister or the Department to react appropriately to certain policy developments - particularly in the arena of bilateral visa arrangements.
19. However the proposed remedy that has been developed to address this also deprives the Minister of the benefit of having invaluable public input.
20. The value of that input is particularly important where the Act, or the Bill, creates an empowering or enabling framework - with the critical essence of the issues being left for development by the Minister and Department in subsequent regulations. Simultaneously, critical stakeholders are deprived of their existing right to present their comments on the content of draft regulations.
21. An example in the current Act appears in respect of retirement permits - whether temporary or permanent. Section 20 of the Act provides merely that a person can obtain a retired person’s temporary residence permit subject to meeting the prescribed standards.
22. The key to qualifying under that heading appears from the Regulations. These Regulations can therefore, theoretically, facilitate or even frustrate Parliament’s original intentions - in the absence of clear policy guidelines from the Legislature.
23. Returning to the requirements for a retirement permit, Regulation 29 (2) provides that to qualify under this heading, a person has to be earning a pension that is valued at no less than R20 000,00 (twenty thousand) per month. Regulation 29 (3) prescribes, in the alternative, that to succeed, a pensioner has to have a total net worth of not less than twenty million Rands.
24. Under this heading, and using a hypothetical example only, the average Mozambican mineworker who has worked in one of our coal mines for the past forty years and who has developed a passion for this country, who has given the best years of his life to this country and who has developed a complex network of social relationships here, must put aside his dream of ever retiring to a smallholding in the Eastern Cape. He can never hope to meet the requirements of the Regulations. His only chance is to attempt to qualify under another heading.
25. The point the LSNP seeks to make from the evident Eurocentric and/or socio-economic bias of the Regulations, is solely that particularly where the Act creates an enabling framework and leaves a ‘space’ to be filled by regulations, even where policy guidelines have been provided by Parliament, public input on the content of the regulations can play a useful and critical role.
26. In a similar vein, a review of the endnotes to the draft final regulations which were struck down earlier this year by the Cape High Court shows that, putting aside the problematic content of those draft regulations for the moment, the public input had gone some way to pointing out to the authorities potential practical difficulties raised by the application of those regulations.
27. The bulk of those comments came from parties or persons involved with the workings of the immigration process on a day to day basis.
28. As the current section 7 could easily be amended to limit any possible ‘veto effect’ the public’s comments might have, the LSNP considers that making provision in the Act for limited public consultation would still be of considerable benefit to the practical application of the amended Act.
29. The possible ameliorating effect of still providing for consultation through the IAB is addressed below.

 

The Immigration Advisory Board:

30. Bearing in mind the old adage, "if it ain’t broke don’t fix it", the LSNP is concerned that Parliament is being asked to repeal certain fundamental policy provisions which it had passed only two (2) years ago without there being evidence - which is in the public domain anyway - that, under this heading, there is a mischief which needs to be remedied, and, if so, which needs to be remedied in this manner.
31. As with every other member of the public, the LSNP has, at best, a limited awareness of what, if anything, the IAB has done or not done in its lifetime outside of the series of public workshops which the IAB convened on a number of migration-related subjects. Other key indications are to be gleaned from Ministerial or Departmental speeches or statements. None of those we have perused identify the existence of any practical shortcomings or abuses.
32. It is however clear both from media statements issued by the Minister and from the Memorandum to the Bill that the workings of the IAB appear to have evoked considerable controversy in certain circles.
33. Unfortunately due to the limited amount of public disclosure that has taken place it is hard to judge whether the ‘criticism’ or concerns are justified and whether the proposed responses are proportionate reactions.
34. The LSNP also records its general concern that the deliberations in this regard might have benefitted from hearing from pertinent stakeholders, including the Ministry, Department or even the IAB, as to what the problems actually are or were.
35. The LSNP makes these comments with due deference to the stated concerns captured in the Bill, as appears at Item 2.6 of the memorandum to the Bill, that-

" The Board will no longer [the underlining is by LSNP] have powers to review the decisions of either the Department or the Director-General".

36. The LSNP pauses to record that its comments here are premised on the assumption that the terms "review" and "decisions" are used in the same sense as they are employed both in the Act and the Bill.
37. Despite an exhaustive search the LSNP is concerned to note that it has been unable to find any provision of the Act which empowered or entitled the Board to "review" a "decision" of either the Director General or of the Department.
38. Unfortunately, the Memorandum does not expressly identify which are the offending sections of the Bill which supposedly extended such powers of review to the Board.
39. Nonetheless the Bill proposes that sections 5 (c) and (d) of the Act [dealing with what are aptly described as the "functions" of the Board] be repealed, the evident implication being that these are the offending sections.
40. The LSNP notes that the functions described in both subsections - and the concomitant duties for the Board - are premised by the words that "[t]he Board shall advise [underlining by LSNP] the Minister in respect of-....".
41. The LSNP submits that it is a somewhat strained construction of the phrase ‘shall advise the Minister’ to conclude that this gives the Board a power to "review" either the Department’s implementation of the Minister’s policies.
42. Similarly, the LSNP submits that section 5 (d) does not give the Board the power to review the Department’s decisions as part of the wider section 8 appellate function.
43. Section 5 (d) was clearly intended to provide the Minister with support when he or she was required to review a decision of the Department (in terms of the section 8 appeal process) and, as indicated earlier, the Board’s only function is to provide the Minister with advice on that review application to the Minister - not to correct or set aside the Department’s decisions.
44. The LSNP considers however that it would have been useful to have had an indication whether or not the Board had somehow usurped its functions in this regard and, if so, how this had come to be.
45. The LSNP pauses however to recall that more than half of the members of the Board as it is presently constituted, about which there appears to be such concern, consists of senior civil servants appointed to represent their respective Ministers and Departments.
46. The LSNP is concerned that it is apparent that the motive for seeking to effect this amendment may actually be based on a misunderstanding of the legislation which Parliament itself had designed.
47. The LSNP records however that its point in addressing this issue is not to engage in speculation about what may or may not have happened behind closed doors at the IAB but rather to express concern about limiting the functionality of an important vehicle which served, amongst other things, to convey stakeholder concerns to the Ministry in a structured and ongoing manner. It is concerned too that this limitation is taking place in an environment where there is not a clear indication before Parliament that there was actually a need to do so.
48. Turning again to the proposed amendments in this regard, paragraph 2.6 of the Memorandum to the Bill states that the functions of the IAB are to be limited to advising the Minister on policy issues.
49. One pertinent area where the IAB is/was involved with was the consideration of applications for exemption made in terms of section 31 (2) (b) of the Act which provides that -

" [u]pon application, the Minister ... after consultation with the Board may, under terms and conditions determined by him ... grant a foreigner ... the rights of permanent residence . . . ".

50. The LSNP considers that by adding the consultative requirement, the current provision constituted a substantial improvement on the similarly-worded old section 28(2) of the ACA, to which the Bill apparently seeks to return.
51. In particular the LSNP considers that whereas both the ACA and the Act require the Minister to apply his or her mind to the application, and obviously to take into account wider policy considerations than could properly be considered or motivated by the Department, the range of skills and knowledge within the IAB gave the Minister a resource and an improved capacity, from across a much wider spectrum of government and non-government stakeholders, to properly apply his or her mind to such applications.
52. The LSNP is concerned that this is an instance where a provision which was so clearly intended to serve the Minister, may well have been misconstrued and ought to be revisited.

 

DEFINING WHAT IS ‘WORK’ IN THE REPUBLIC

53. The second theme is the fundamental re-definition of what constitutes "work" for purposes of the Act (Bill) - the impact of which permeates the entire permit regime of immigration law.
54. The LSNP considers that, whilst flawed in parts, the current definition recognized the practicalities of employment and business in the age of globalisation.
55. The LSNP is concerned that it is not just multi-national companies that stand to be affected by amending or narrowing the definition but that international NGO’s, charities and entities such as small consultancies working regionally, which use South Africa as a regional administrative hub for their activities, stand to be prejudiced. This is because where their activities were not deemed to be "work" under the present definition, under the Bill some of their staff will be deemed to be engaged in work thus requiring compliance with one or other form of work permit as opposed to the much speedier visitor’s permit.
56. The LSNP is further concerned that this constitutes a de facto return to the definition which applied during the era of the ACA [which was whether or not a South African citizen or permanent resident could be paid to do the particular job] which, after 1994, was severely strained by having to cope with the age of globalization and the return of South Africa to the international community, resulting in a series of informal amendments to the Act.
57. The LSNP considers that extending the net to ".... activities consistent with being employed ....in the Republic" is, as with the ACA definition, wide enough to describe almost any category of human endeavour.
58. For example, a person leaving an airport building pushing a trolley laden with suitcases could be described as being engaged in activities consistent with being employed as a baggage handler or porter - but he or she could equally be a tourist pushing his or her own bags. Does the tourist now need a work permit to push their own luggage trolley ?.
59. One of the requirements of valid legislation such as the present Act, is that it must make clear what a person can and what a person cannot lawfully do. It is not evident that this definition ‘clears’ that particular threshold.
60. Given that the definition of ‘work’ is so tied to the underlying philosophy or policy of immigration legislation, the LSNP urges that the current definition be retained until it can be properly re-considered in the light of the requirements of a revised Bill or immigration policy.

 

PERMANENT RESIDENCE ‘STATUS’

61. The third theme the LSNP will consider emerges from the problems raised by the proposed amendments in respect of the rights of permanent residents.
62. Section 25 (1) states clearly that permanent residents have ".... all the rights, privileges, duties and obligations of ...." citizens except those rights, privileges, duties and obligations which are expressly reserved to citizens by the Constitution "or a law" - which law can include the Immigration Act.
63. The LSNP considers that the consequence of certain proposed amendments is the effective diminution of the rights of permanent residents (which in turn will be bad for the business community and its confidence).
64. The LSNP here refers to the proposed repeal in its entirety of the term "resident" from the definition section of the Act (which currently means "a permanent resident") and the consequential deletion of the term "resident" where it appears in the definition of the term "foreigner".
65. In the Memorandum to the Bill, the repeal of this definition is justified on the grounds that its original inclusion in the Act created a distinction between permanent residents and temporary residents.
66. The LSNP submits that section 25 (1) of both the Act and the Bill clearly provides for precisely such a distinction to exist.
67. The legitimate justification for such a distinction has also been confirmed by decisions of the Constitutional Court.
68. In, for example, in khosa v minister of social development cct 18/03 (handed down on 4 March 2004), the Court, reaffirming its earlier position on this point in the matter of Larbi-Odam v MEC for Education (North West Province) 1998 (1) SA 745 (CC) @ para 24, stated at para 59 of the Khosa judgment that-

" It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, who have only a tenuous link with this country. The position of permanent residents is however quite different to that of temporary or illegal residents [our underlining].... Like citizens, they have made South Africa their home."

69. The effect of deleting the term "resident" means that wherever the term "foreigner" is used in the Act it must be read to refer to both a temporary and a permanent resident of the Republic.
70. In some clauses the Bill addresses certain of the anomalies raised by this through inserting the word "permanent" before "resident" - see for example, Clause 11 amending section 10 (1) and Clause 20 amending section 18 (1) - albeit that the term ‘permanent resident’ is itself not defined in the Bill.
71. Significantly, this exercise has not however been done throughout the Bill. This omission poses the question whether this was by oversight or instead reflects an intention to water down the rights of permanent residents. No such intent is however described in the Memorandum.
72. Examples of where permanent residents and temporary residents have been treated alike, are-

(a) Clause 10 re section 9 (4) which would require a permanent resident to have a passport valid for 30 days before he or she can return home.

(b) Clause 11 re section 10A (1) which would require a permanent resident to have to produce a visa to be allowed to enter the RSA

(c) Clause 30 amending Section 29 (1) (a) which appears to have the consequence of rendering permanent residents illegal foreigners should they contract a prescribed infection, disease or virus.

(d) Section 38 (4) would, in the light of such an amendment, require an employer to report the termination of a permanent resident’s employment to the Department and that a failure to do so would expose the employer to criminal sanctions in terms of Clause 45 amending section 49 (6) of the Act.

73. The LSNP considers that unless clarity or uniformity is obtained, the effect of the repeal has consequences ranging from confusing to the chaotic which could have the further effect of causing (a) the Republic grave embarrassment and (b) more litigation.

 

ADMINISTRATIVE JUSTICE

74. The fourth significant theme for the LSNP is the proposed repeal of various administrative justice provisions.
75. The most significant amongst these is the repeal in its entirety of the current section 8.
76. In its current format, section 8 has three components. The first is the notice to the affected person of an intended decision. The second describes the appeal steps available to the aggrieved applicant. The third addresses procedural issues.
77. The LSNP considered that the notice procedure constituted an important embedding in the immigration context of a long-standing requirement of our common law - that a person was entitled to be heard before a decision adverse to his or her rights was taken.
78. The repeal of the notice provision has been motivated by the Department arguing, it is understood, that (a) temporary residents do not have rights to stay in the country and that therefore (b) they have no "right" which is to be or is being adversely affected.
79. The LSNP submits that there are at least two counter-arguments to this position:

(a) The subsection deliberately uses the term "person" as opposed to the defined term "foreigner". Thus even assuming temporary residents do not have any relevant rights, as contended by the Department, South African citizens or permanent residents who are "adversely affected" by the decision do have rights - such as the rights to married life with their temporary resident spouses and to family life with their children.

(b) Again even assuming we are only concerned with temporary residents and that they do not have an enforceable right to reside in the Republic, foreign nationals are entitled to their dignity, to equality of treatment, to life and to many other rights enshrined in the Constitution - not least their right to administrative justice.

80. Indeed, in addressing the situation of persons at ports of entry who have not yet been allowed to enter the Republic, in Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC), the Constitutional Court held that-

" .... The denial of [the rights contained in section 12 and section 35 (2) of the Constitution] to human beings who are physically in the country at sea or - airports merely because they have not entered South Africa formally would constitute a negation of the values underlying our Constitution. .... When the Constitution intends to confine rights to citizens it says so."

81. On 28 November 2003, and in the matter of Minister of Home Affairs vs Watchenuka, case number 10/2003, (as yet unreported), the Supreme Court of Appeal ["SCA"] in considering whether the Department of Home Affairs could lawfully impose on asylum seekers a general prohibition against seeking employment, noted that the restriction to citizens of the right to choice of occupation was in accordance with international human rights standards and instruments.
82. The SCA held however that such a generalised prohibition was nevertheless unlawful. The Court commented that-

" .... where employment is the only reasonable means of the person’s support other considerations arise. What is then in issue is not merely a restriction upon the person’s capacity for self-fulfilment, but a restriction upon his ability to live without positive humiliation and degradation ...."

83. The LSNP submits therefore that a repeal of the current section 8 rights in toto, on the grounds that foreign nationals do not have any relevant enforceable rights should, in the light of the above authority, be given serious reconsideration.
84. The LSNP considers therefore that repealing the current section 8 is, in all likelihood going to result in increased litigation by persons seeking to enforce rights entrenched in the Constitution but which are being denied to them - or their partners - by Department officials.
85. The LSNP notes that in many respects Clause 9 is identical to section 52 of the ACA even down to the affected person being given three (3) days to make his or her representations in response to being declared to be a prohibited person.
86. One significant distinction between Clause 9 and section 52 however is that section 52 (2) provided that a person could not be deported until the Minister had taken a decision on the representations. Clause 9 removes that protection.
87. The proposed section now only provides that the affected person cannot be removed before he or she has either had a chance to submit such representations [to the Director-General] or has submitted them -whichever event come first.
88. In other words, the current amendment proposes that the affected person can be removed immediately he or she has made their representations.
89. In other words the current proposal marks a retreat from even the limited rights regime of the ACA.
90. The LSNP is uncertain as to what is intended should the Director-General - or even the High Court - thereafter conclude, after a person has been removed, that the deportation was wrong on the facts or in law.
91. Will the Department not then be obliged to seek to secure and pay for the return of the person or persons wrongfully deported? And will this also not then further expose the Department to potentially considerable civil damage’s claims ?
92. The LSNP is also concerned at the evident tension that will exist between the time frames contemplated in Clause 9 [three days] and the time frames required to give effect to the rights the affected person has to first obtain reasons in writing for the relevant decision together with his or her right to have access to all the relevant information relating to him or her - and the decision.
93. Thereafter the affected person would still retain the right to approach the High Court to test the legality of the relevant decision.
94. The LSNP is deeply concerned that the three (3) day provision is fundamentally impractical, of uncertain constitutionality and will put further pressure - particularly on the Urgent Rolls - of the High Courts in jurisdictions such as the Transvaal Provincial Division, the Witwatersrand Local Division and the Cape Provincial Division.
95. The LSNP notes too that it is unclear from the Bill whether the affected person is required to limit his or her representations to the refusal of entry or the finding that he or she is an illegal foreigner.
96. There does not appear to be a right to make representations, in terms of Clause 9, on why one should or should not be deported.
97. The affected person, or for example their families, may have quite compelling reasons not to be removed or deported which have little to do with the merits of the ‘status’ determination contemplated in the proposed section 8 (1).
98. The LSNP also notes with concern that representations are to be directed to the Director General whereas the provision in the ACA provided for representations to be made to the Minister.
99. As has been noted elsewhere there remains a fundamental limitation where appeals or representations are to be directed to a Department official as opposed to the Minister. The Department and its Director-General are confined to operating with the policy parameters set by the Minister.
100. There is no evident reason why the original authority should not vest in the Minister who can delegate the discretion with appropriate directions for handling the more extraordinary submissions.
101. The LSNP considers in conclusion that the provision of the internal appeal processes provided for in the current section 8 holds out prospects for reducing litigation against the Department, in time and should be retained.

 

THE WITHDRAWAL OF THE RIGHTS OF FOREIGN NATIONALS

102. The final ‘theme’ and closely related to the last two headings and to the diminution of rights described there as called for in the Bill, is the proposed termination of peoples’ or persons’ rights (if that is what is intended), directly or indirectly.
103. Our Constitution recognizes that "everyone" including foreign nationals - illegally resident or otherwise - is equal before the law and has inherent dignity.
104. In Watchenuka (cited above) the Supreme Court of Appeal noted that-

" The inherent dignity of all people - like human life itself - is one of the foundational values of the Bill of Rights. It constitutes the basis and the inspiration for the recognition that is given to other more specific protections that are afforded by the Bill of Rights."

105. Delivering the Third Bram Fischer Lecture, the Chief Justice said of the equality principle, that to be-

" .... consistent with the underlying values of the Constitution, equality must also include equality of worth, requiring everyone be treated with equal respect and with equal concern ...".

106. Earlier, in his inimitable style, the late Justice Mahomed (as he then was) described the role of the Constitution and the Bill of Rights in the following terms-

" .... The South African Constitution .... retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution."

107. Against the background of this description of our bedrock constitutional principles, the Act, the Bill and the Bill of Rights challenge us to consider whether the Amendment Bill can now lawfully undo that recognition or ‘alienate’ those rights afforded to foreign nationals and duly captured in the Immigration Act.
108. In the context of a constitutional arrangement where Parliament was sovereign, this obviously could happen. But, barring there being a retreat to that past which Justice Mahomed described as being "... authoritarian, insular and repressive ..." and being now in a society where the Constitution is the supreme law and source of all legality and legitimacy, the LSNP submits that such a proposition merits a careful and clear re-think.

 

MISCELLANEOUS PROVISIONS

Transitional arrangements / Clause 49 (1):

109. The transitional arrangements under the present Act posed numerous practical problems for practitioners, as indicated below. There was also a serious concern that Regulations 48 and 49 to the present Act were in effect amendments to the Act but which had been brought about by necessity to address shortcomings in section 53 of the Act (which deals with the transition between the ACA and the Act). It appears though that, by and large, most people were eventually able to work within the framework created by section 53 of the Act.
110. According to reports from the members of the LSNP there are however still instances of them receiving instructions involving decisions originally taken in terms of the ACA. A further ‘transitional’ phase, between the Act and the amended principal Act, raises the prospect of practitioners and the Department having to interpret a double ‘transition’ in some instances.
111. The LSNP is concerned however that the wording of Clause 49 (1) of the Bill poses its own problems.
112. Both clauses 49 (1) (a) and 49 (1) (b) use the phrase "anything done" to describe what type of ‘initiatives’ are permitted or affected by the transitional clause.
113. The principal difficulty is that because this phrase is either so vague or so wide, it is unclear what Clauses 49 (1) (a) and 49 (1) (b) seek to save, permit and/or proscribe respectively.
114. An example of the type of concern the LSNP has is what does the Bill contemplate will happen to an intended adverse determination which has been conveyed to the affected person prior to the Amendment coming into operation with the rest of the appeal process falling to take place during the lifetime of the amended principal Act.
115. As there will no longer be provision for this notice and appeal process in terms of the Bill, Clause 49 (1) (b) makes it clear that this cannot be deemed to have been done in terms of the amended principal Act.
116. The LSNP is unclear as to what is then intended to become of the rest of the notice and appeal process in respect of that particular determination.
117. A further type of concern reported by LSNP members is that situations did arise under the previous Act where persons who, seeking to emigrate to South Africa, had put in place arrangements (including incurring costs) to comply with the ACA which arrangements then had to be changed to comply with the present Act.
118. This can become a particularly acute and embarrassing problem when the legislation has been amended speedily and people have been caught ‘offside’, as it were.
119. One such possible area where this may occur will be where the effect of the current definition of work means that people did not have to apply for work permits and instead put in place preparations for appropriate visitors’ permits only to find that the Bill will impose a different regime.
120. Without having clarity on what was intended to be achieved by Clause 49 (1) currently, the LSNP has not been able to develop and propose an alternative.
121. The LSNP would however appeal that a more clearly worded alternative to address the transition phase be incorporated into the Bill.

Clause 3 / repealing section 2 of the Act:

122. At paragraph 2.3 of the Memorandum to the Bill, the proposed repeal of the current section 2 is justified on the grounds that the section "... does not serve any meaningful purpose".
123. The LSNP does not object to collapsing the current section 2 into the Preamble to the Act and, in so doing, eliminating what may well be duplications in the two provisions of the Act.
124. However as appeared from the judgment of the Cape High Court in the matter of Eisenberg v Minister of Home Affairs , the President of the RSA and others, dated 14 April 2004, the Court was greatly assisted by the existence of a section describing the objectives of the Act.
125. More particularly, the LSNP is concerned at the proposed repeal of a provision such as section 2 (1) (g) which provides that one of the objectives of the Act is to promote-

" .... a climate within the Republic which encourages illegal foreigners to depart voluntarily."

126. In this regard the LSNP also draws attention to the proposed amendment of the definition of the term "deportation" in so far as the words "involuntarily or under detention" are to be removed.
127. The LSNP is concerned that in a context of a Department (and the State generally) having limited resources, there would appear to be considerable logic in seeking to encourage illegal foreigners, where appropriate, to leave voluntarily rather than to have the state commit much needed resources in effecting such removals or deportations.
128. This is particularly so when all too often it is the private sector which is being paid to effect such deportations.
129. Section 29 (1) (c) of the Act as read with Regulation 34 (2) provided that a person deported (as opposed to leaving voluntarily) could not re-enter unless he or she had first been rehabilitated which included that the costs of deportation had been repaid. There is or was considerable advantage to be had in seeking to leave voluntarily.
130. In what will then amount to being a significant strategic re-think on the Act’s enforcement strategies - and which is not dealt with in the Memorandum to the Bill - the distinction between removal and deportation as a component of immigration enforcement will be phased out.
131. The LSNP, believes that a one-dimensional perspective of the so-called illegal immigrant is both misleading and unhelpful both for immigration regulation and for the state’s planning purposes.
132. The LSNP is of the considered opinion that before the mechanisms of enforcement are reconsidered, careful thought should go into clarifying what precisely is sought to be achieved through the various possible devices of enforcement.

Clause 12 / section 10A:

133. A visa is defined as being permission to report to a port of entry and that in order to be admitted to the Republic a foreign national may only do so once she or he has been issued with a temporary residence permit.
134. Section 10A (1) then provides that-

" ... any foreigner who enters the Republic, shall .... on demand produce a valid visa, [LSNP underlining] granted under section (3), to an immigration officer."

135. But section 10A (5) provides that any person who-

" .... contravenes subsection (1), shall [LSNP underlining] be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 12 months ...."

136. It will thus become a criminal offence to merely arrive at a port of entry and to present the immigration officer with a visa which is invalid for one or other reason, irrespective of how bona fide the visitor is.
137. The LSNP is concerned that this response to what might have been a perfectly innocent error by, for example, a travel agent, might appear to be a somewhat disproportionate response.

Clause 24 / section 23 (2):

138. The proposed revised opening phrase to this subsection gives rise to some concern.
139. As appears from the Preamble to the Refugees Act, 130 of 1998, a central pillar of the provisions of that Act is the fact that the Republic has acceded to the 1951 UN Convention Relating to Refugees, the 1967 Protocol thereto and the 1969 OAU Convention on refugees.
140. The Preamble to the Refugees Act records further that the Republic -

" .... has in so doing, assumed certain obligations to receive and treat in its territory refugees in accordance with the standards and principles established in international law..."

141. One such principle is that of the non-refoulement - or non-return - of refugees and asylum seekers which principle cannot be resiled from by a signatory state.
142. Given the importance of this aspect, the LSNP considers that the entirety of the section be set out: Section 2 of the Refugees Act records that -

" Notwithstanding any provision of this Act or any other law to the contrary, [LSNP underlining] no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where-

(a) he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion, or membership of a particular social group; or

(b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing public order in either part or the whole of that country."

143. The effect of the two introductory lines (in the Bill and in the Refugees Act) is that we have two provisions with starkly opposing directions.
144. It is apparent that the intended effect of the introductory line in section 23 (2) of the Bill is that any would-be asylum seeker who overstays the lifespan of his or her asylum transit permit, shall thereupon be dealt with as an illegal foreigner and is therefore at the very real risk of prompt removal from the Republic - irrespective of any protection he or she may enjoy in terms of any other law - and to his or her country of origin.
145. The LSNP submits that the introductory line in section 23 (2) contravenes both the Republic’s international obligations and Parliament’s earlier stated intentions in the clearest language and must be excised from the amendment.
146. In addition the remainder of the proposed section 23 (2) runs into a further formidable difficulty.
147. In the matter of Marotsanga v Minister of Home Affairs during 2004 a Department official claimed in an affidavit supposedly made on behalf of the Director General and Minister that, certainly at the Pretoria Refugee Reception Office, applications from new asylum applicants were only accepted on one day a week - and if that day fell on a public holiday then no applications would be received that week at all. The officials did not see anything wrong in this procedure and there was no indication in the affidavit of there being any plan to address the situation.
148. The official further claimed that they did not receive and process all the asylum seekers who presented themselves on the ‘new applications’ day.
149. It would therefore be extremely problematic for the bona fide asylum seeker to be held responsible for the failure or omission of the Department to receive and process a new asylum application, as Clause 24 / section 23 (2) proposes.
150. The LSNP accepts that there might well be instances where would-be asylum seekers are in fact abusing the system although it rejects as being a non-sequitur, the proposition reported frequently in the media, if a person’s asylum application has been rejected, that he or she is or was necessarily ‘abusing the asylum system’.
151. On this subject, it was noted by the Supreme Court of Appeal in the Watchenuka decision that-

" There was some suggestion that the rights that are accorded to applicants for asylum are abused by persons who are not genuine refugees but that provides no reason for limiting the rights of those who are genuine [LSNP underlining] ...."

152. In consequence, the LSNP further proposes that the section should instead provide-

(a) for an extension of the asylum transit permit in appropriate instances; and

(b) the clearest guidelines to the Director-General setting out the instances when an asylum seeker might be declared to be an illegal foreigner.

Clause 27 / section 26 (b) (ii):

153. This clause provides that permanent residence granted on the basis of the existence of the good faith spousal relationship-

" .... shall lapse if at any time within three years from its application the good faith spousal relationship no longer subsists, save for the cause of death."

154. The LSNP has concern here based on reports from our members. There have been incidences of abusive South African spouses looking to take advantage of the threat of the termination of the foreign spouse’s status, to unlawfully pressure the non-South African spouse.
155. Indicatively these threats can take the form of seeking to compel the foreign-born spouse not to leave the home or by imposing threats in terms of child access or even the very custody or guardianship of the children and/or on maintenance and support issues. These threats can even include pressurising the foreign spouse to suffer further physical or mental abuse to avoid the perceived threat of being deported.
156. There is, in summary, a real threat that the wording of section 26 (b) (ii) can give licence to both spousal and child abuse.
157. The LSNP proposes that the problem can be addressed by allowing the Director-General a discretion in appropriate cases. This would entail amending the phrase "shall lapse" to read "may be withdrawn by the Director-General"

Clause 28 / section 27 (g):

158. The LSNP notes that a temporary residence permit in the form of a relative’s permit can be granted to a person who is part of the "immediate family" of a citizen or permanent resident. The term "immediate family" is defined in the Act to mean family within the second step of kinship.
159. However in terms of section 27 (g) permanent residence may only be granted to a person who is relative of the citizen or permanent resident - within the "first step of kinship".
160. The LSNP is concerned to note that whereas the ACA provided for family reunification in a wide sense, the provisions in the Act and the Bill, in this regard, promote a certain inconsistency of approach and appear to encourage the more nuclear concept of the family.

 

Clause 30 / section 29 (1) (b):

161. The LSNP proposes that ‘people trafficking’ be added to the list of crimes.
162. The LSNP notes that people trafficking has been made a crime in other countries.

Clause 30 / section 29 (1) (f):

163. Here, as in a number of other enforcement provisions, the LSNP is concerned at the apparent creation of strict criminal liability provisions which device is of dubious legality, following a series of Constitutional Court decisions on this subject.
164. The LSNP considers that a more just approach might be to provide for the possible imposition of a range of administrative sanctions if a reasonably plausible explanation cannot be tendered in the face of prima facie evidence from the Department that the documents are in fact fraudulent, as alleged.

Clause 32 / Section 31 (2) (b):

165. Clause 32 proposes to amend section 31(2)(b) by amending the phrase "grant ... the rights of permanent residence" to read "grant ... the privileges of permanent residence".
166. The purpose both of section 28(2) of the ACA and of section 31(2)(b) was to provide the Minister with a mechanism to come to the assistance of persons who found themselves having fallen through the cracks of the requirements of the various provisions of the Act to the extent that the Minister considered there was sufficient merit or justification to come to their assistance.
167. Cross-referencing Clause 32 with section 25(1) [in respect of which no amendment is currently proposed] the LSNP is concerned that nowhere in the Act are the "privileges" of permanent residence set out. Section 25(1) describes instead the "rights" of permanent residence. These rights include having ".... all the ... privileges..." of citizenship.
168. Unfortunately, the object of this particular proposed amendment is not dealt with in the Memorandum to the Bill.
169. A "privilege" is " .... a right, advantage ... granted to or enjoyed by a person, a class of persons beyond the common advantage of others".
170. It is therefore unclear what relief in the form of "privileges" the Minister may therefore grant which creates the risk that the relief clearly contemplated in terms of both the present section and its predecessor might become of no consequence.
171. The LSNP submits therefore that either the proposed amendment be withdrawn or that the Act provide for clarity on what precisely are the privileges of permanent residence, notwithstanding the provisions of section 25(1). Such a measure would however clearly be another non-technical ‘correction’ in the Bill.
172. The LSNP therefore urges that the proposed amendment instead be withdrawn.

Clause 35 / section 34 (11):

173. The term "ship" in the Act is being amended to read "conveyance". However, at section 35 (11), the Bill proposes inserting - or retaining - the word "ship".
174. The LSNP notes that this amendment could well have anomalous consequences in that it would apparently allow the master of any other form of conveyance, such as a taxi or a cargo plane, to hold a person in any other form of conveyance for longer than thirty days.
175. The LSNP notes further that in the recent decision of Lawyers for Human Rights vs Minster of Home Affairs (referred to above), the Constitutional Court was using the term "ship" - and restricting detention on any such ship - in the wide sense used in the current Act.
176. The LSNP recommends therefore that the term "ship", in section 34 (11) should be amended to read "conveyance" to keep it in line both with the rest of the Bill and, not least, the judgment of the Constitutional Court.

Section 46 (1):

177. The Act currently provides that no one-

" .... other than an attorney, advocate or immigration practitioner, may conduct the trade of representing another person in the proceedings or procedures flowing from this Act."

178. In order to curb the widespread fraud and malpractice which, in the view of the Department, was all too often a feature of the work of a significant number of immigration agents, it was the intention of this section that such practice or trade be limited to persons who would, at the very least, be subject to a meaningful maintenance of standards and disciplinary processes.
179. The Regulations to the Act provide for immigration practitioners (defined to mean persons other than attorneys or advocates) to have to pass regular exams, provide professional indemnity insurance and to be required to registration with the Director-General with the Association of Immigration Practitioners being responsible for disciplinary issues.
180. Unfortunately, the present wording of the Act leaves a loophole in respect of-

(a) advocates" who are not members of any of the Bars, as well as

(b) attorneys who are not on the practising roll as maintained by the Law Societies.

181. Persons falling into these categories are not so subject to what is considered to be an adequate, meaningful or effective disciplinary process.
182. Any person with an Bachelor of Laws degree may apply to the High Court to be enrolled as an "advocate". This step does not, of itself, bring the "advocate" within the jurisdiction of the Bars. There is no meaningful disciplinary oversight of such persons unless they apply to practice law under the auspices of the Bars.
183. In addition, advocates, whether they are members of any of the Bars or not, are not allowed to operate trust accounts such as are contemplated in the Attorneys Act, 53 of 1979, the contents of which are guaranteed by the Fidelity Fund subject to strict regulation including an unqualified annual audit.
184. An important consideration in all of this is that in all but a very limited number of instances, an advocate is not allowed to take instructions - and fees - directly from members of the public.
185. In the words of the Supreme Court of Appeal, recently, this rule-

" .... is not a pointless formality or an obstacle to efficient professional practice, nor is it a protective trade practice designed to benefit the advocacy. .... The training of each profession is different and results in different skills. .... The result of this divergence is ... the production of two classes of professionals, each skilled in its chosen field, but not substantially equipped to operate in the sphere of the other profession."

186. A further consideration is that a practising attorney may easily remove himself or herself from the roll of practising attorneys and thus remove himself or herself from the scrutiny and discipline of the Law Society.
187. The Department will confirm that there are in fact persons practising as immigration ‘agents’ who fall into one or other of these ‘loophole’ categories.
188. The LSNP proposes therefore section 46 (1) be amended to read as follows:

" .... other than [an attorney], a practising attorney [advocate] or immigration practitioner in good standing, may conduct the trade of representing another person in the proceedings or procedures flowing from this Act."

Clause 8 / Subsection 7 (2):

189. The LSNP notes that provision is made in this Clause for the creation of forms which may differ based on "categories of persons".
190. Nowhere in the Act or the Bill is there any guidance to the Minister as to who or what constitutes a "category" of person/s - as opposed to differences in the national or residential or other status of such persons - and what any other such categories might be.
191. In a more general comment, the LSNP is concerned that there is little evidence that much regard has been given in the drafting of the Bill to the interests or welfare of children - especially unaccompanied minors - who might fall foul of our immigration laws.
192. The LSNP urges that the various provisions Bill be reviewed in the light of the rights of children as set out in other legislation as well as our international obligations.

 

CONCLUSIONS:

193. The LSNP would like, in conclusion to publicly record its appreciation to the Department of Home Affairs generally, to its many loyal and committed staff throughout the Republic and to the Director General in particular - and his various predecessors - for their ongoing cooperation with the LSNP and its members over the years.
194. The LSNP would also wish to extend its best wishes to the Director-General for a successful outcome to the Turnaround Strategy which is desperately needed for the good of the country. The LSNP records its willingness to support the Director General in any way it can, with his programmes.
195. The LSNP would also like to extend its best wishes to the Minister and Deputy Minister and we look forward to years of productive cooperation with the Minister and her Deputy Minister and similarly undertakes to assist the Minister wherever the LSNP can do so.
196. Finally, the LSNP would again like to thank the Portfolio Committee for the opportunity of being allowed to present its views and records its desire to be of assistance to the Portfolio Committee in whatever capacity it can.

THE CHAIRPERSON

IMMIGRATION LAW SPECIALIST COMMITTEE

LAW SOCIETY OF THE NORTHERN PROVINCES

PRETORIA

2 AUGUST 2004