JOINT SUBMISSION OF COSATU AND NUM ON THE IMMIGRATION AMENDMENT BILL [B11-2004]
5 August 2004
COSATU and NUM welcome the opportunity to participate in the public hearings on the Immigration Amendment Bill ("the Bill"). Our interest in immigration is informed by a number of considerations, with the first being the interests of our membership comprising both South African and foreign workers. In this respect, we have always maintained that there is a need to ensure that immigration law should not be used as a mechanism to exploit migrant workers as cheap labour or undermine general labour standards. Further, the targeting of foreign skills must be implemented in a manner that does not compromise local skills development or exacerbate labour market instability.
More generally there is a need to address broad transformative objectives initiated post-1994 and to recognise our role and responsibility as members of the SADC region and the African continent. In line with this there is a need to develop a progressive policy framework to address problems of racial discrimination and xenophobia and to facilitate regional socio-economic development through the coordination of immigration policy with labour, trade and industrial policy within the SADC region.
Our experience in engaging with the previous immigration policy and legislative processes (including the 1999 Draft White Paper on International Migration, Immigration Act 13 of 2002 and its Regulations) has been an extremely frustrating one owing to the obstructive role played by the Department of Home Affairs, with civil society inputs being largely ignored and NEDLAC undermined in its role to consider draft legislation that has significant labour, social and economic implications. Accordingly the open approach adopted by the Department in the current process is warmly welcomed, and we believe that this marked shift in stance is more to likely to translate positively in relation to the broader immigration reform that is required.
In our submission to Parliament in 2002 we raised our concern that the Immigration Bill was seriously flawed and would consequently require major redrafting. This position was supported by various other civil society organisations. However, in order to meet constitutional deadlines to remedy defects in the Aliens Control Act, Parliament passed an Immigration Act, that is ironically itself riddled with constitutional defects. Our arguments in this respect have already been vindicated by the institution of various court challenges to the Act and the introduction of this Bill.
We believe that the Bill constitutes only an initial step towards developing a more appropriate immigration policy and legislative framework than what we currently have in place. The development of immigration policy is crucial to the process of overhauling and transforming our inherited racially-motivated immigration system. As the 1999 Draft White Paper on International Migration has never been finalised, key policy questions have been left unsettled, which in our view have severely hampered much needed transformation within the Department. Accordingly we welcome the Department’s acknowledgement of the need for a more comprehensive overhaul of immigration policy and legislation.
While we see this Bill as only an interim measure, it does not detract from the role that it should play in addressing more urgent reforms that cannot be postponed to the longer-term review process. In this respect we are strongly appealing to the Portfolio Committee to accommodate the NEDLAC agreements on the Bill as well as other proposals contained in this submission.
Taking into account the severe time constraints, our comments on the Bill do not constitute a comprehensive analysis of its implications. Accordingly, we are calling on Parliament to exercise its constitutional powers of oversight of implementation of this Bill once passed in order to identify and address any unintended consequences that may arise as a result of the hurried processing of the Bill. Further, we are calling on Parliament to retain the right to consider final regulations.
The current preamble in the Act is inconsistent with standard legal drafting, which ordinarily sets out the broad values and principles informing a specific piece of legislation. A preamble is important for the purposes of assisting in interpreting the legislation and to this extent may be used to clarify ambiguities in the law. A general concern with the current preamble is that it does not explicitly acknowledge and outline policy shifts from the historical orientation of the Department and in particular the discriminatory application of immigration law.
Notwithstanding our concerns noted above we believe that a complete review of the preamble would be best left to the long-term policy review process. We have thus confined our comments to the proposed amendments regarding the General Agreement on Trade in Services (GATS) and the need for scarce skills.
Clause 1 of the Bill proposes to delete the provision under paragraph (d), which states that the Act aims to ensure that:
"the needs and aspirations of the age of globalization are respected and the provisions and spirit of the General Agreement on Trade in Services is complied with;" (emphasis added)
We strongly support the removal of this provision, since apart from our overall concerns about the nature of GATS, references to international trade agreements are misplaced in this legislation. In addition, South Africa has acceded to only a few of the GATS provisions, which is directly contradicted by the broad general application of GATS in the provision above. Further, it introduces potential interpretational problems that may pose obstacles to the sovereignty of South Africa to legislate on immigration. It is further problematic that there is not even a single reference to the Constitution in the preamble.
Further, there was general concern that the removal of references to public consultation in the Bill created the impression that the Department intended to remove the requirement of public consultation in respect of regulations. Accordingly, the following was agreed to at NEDLAC, which we support:
"The DHA agrees in principle that there should be an invitation for public comments. It was agreed that the words "and public consultations" will be inserted in section (c) of the Preamble after the word "coordination" and before the word "enriches". The word "constantly" shall be deleted."
The Bill proposes substantial amendments to the composition of the Board. This includes the addition of the representatives of Department of Justice and National Intelligence Coordinating Committee and the deletion of the requirement to appoint general civil society representatives. The Bill retains the requirement for one representative each from organised labour and organised business. While we are not opposed to the proposed additional government representation, we believe that this has further skewed the imbalance of the Board’s composition favouring government representation.
Accordingly, serious consideration must be given to increasing representation of organised labour and business. Further, we are strongly opposed to the deletion of the requirement to include other civil society representatives, which must be distinguished from the representatives of experts already provided for in the Act. Immigration has serious implications for human rights. Accordingly, we are calling for the retention of general civil society representatives, who we believe should have relevant knowledge and experience, including in relation to human rights, administrative justice and refugee matters.
In support of our arguments above it should be noted that the following agreement was reached by the NEDLAC task Team:
"It was agreed that there shall be six civil society representatives, one of which shall be a representative of organized labour and one of organized business, with all six nominations being made through Nedlac. The number of individuals appointed in terms of subsection 4(2)(a)(vi) will not be reduced."
Section 5 of the Act sets out the functions of the Board, which entails advising the Minister on amongst other things the content of regulations, formulation of immigration policy and the implementation of immigration policy. Clause 6 of the Bill proposes to repeal the advisory function on the implementation of immigration policy.
We do not support this amendment and are therefore calling for the retention of the Board’s advisory function on policy implementation. This constitutes an important oversight function of the Department and may be useful in advising the Minister on developing implementation strategies especially in relation to areas that are difficult to enforce or apply. Retaining this function would also facilitate interdepartmental coordination on immigration both generally as well as a mechanism to regulate and address the problems faced by migrant workers. Further, as this is only an advisory function it does not have the effect of usurping executive/ministerial powers.
If this advisory function is not retained, we would like to propose the following alternative formulation that may address concerns underlying its proposed deletion:
The Board shall-
(a) advise the Minister in respect of-
(i)…(ii)…
(iii) policies arising out of the application of this Act;
The wording of this proposal is drawn from section 48(1)(a)(ii) of the Unemployment Insurance Act
Section 4(7) of the Act authorises the Minister to dissolve the Board on "such terms and conditions as he or she sees fit, provided that a new Board shall be convened within 90 calendar days". The Bill is silent on this provision and therefore effectively retains this position.
It must be noted that this provision is inconsistent with other similar advisory structures in other departments, which generally do not contain provisions on dissolution. There is adequate scope for individual or even all members of the Board to be removed in the event of misconduct or negligence.
Accordingly, we are calling for section 4(7) to be deleted from the Act.
Section 7 of the Act sets out the procedure to be followed in making regulations in terms of the Act, and includes the requirement to publish and table draft regulations in Parliament as well as to solicit public comments. Provision is also made for the Board to request the Minister to reconsider the proposed regulations as well as to consider the need to adopt, repeal or amend regulations. Clause 8 of the Bill proposes to substitute this section by specifically outlining the areas in respect of which regulations may be made. Further, the Bill proposes to delete provisions requiring the draft regulations to be published, tabled in Parliament and be made subject to public comment.
We do not support the repeal of express requirements to call for public input and parliamentary consideration especially taking into account the broader social implications that the regulations have. We raised the concern in the NEDLAC process that this gave the impression that the Department intended to dispense with public consultation in making regulations. At the same time we agree with the Department’s concerns about the poor drafting and cumbersome nature of this clause. More importantly despite extensive provisions on public consultation it provided no meaningful protection of rights to public consultation, as reflected in the process around the interim regulations and the now withdrawn final regulations.
We believe that immigration regulations have significant social and practical implications and therefore require intensive public consultation. Our preferred option for a clause on regulations of this nature, would contain the following components:
Accordingly we are proposing the insertion of the following amendments:
7. (6) The Minister must, before making regulations under this Act,—
(a table draft regulations at NEDLAC for consideration; and
(b) publish draft regulations soliciting public comments during a period not shorter than 60 days.
We are aware of the reluctance to accommodate the above proposal owing to the time constraints related to the Presidential deadline to complete the Cabinet process on the regulations by the end of August. Accordingly, we are proposing as an alternative that Parliament at the minimum should retain its right to consider final regulations as reflected above in respect to our proposed clause 7(7)(c). The requirement to table regulations at Parliament would only apply after final regulations have already been made. Therefore, a parliamentary process would not have any implications for delaying either draft or final regulations.
Section 8 of the Act sets out a fairly elaborate adjudication and review procedure for foreigners who may be subject to an adverse determination by a Department official. The official is required to give the affected person 10 days notice within which to make representations. Thereafter, the affected person may resort to a hierarchical appeal process against the official’s decision beginning with the Director-General, whose decision may be appealed against to the Minister and thereafter in turn to the court. Provision is made at each level for a 20-day period within which to lodge the relevant appeal. Combined with the 10-day period to make representations to the Department official, this could effectively add up to 70 days.
The memorandum to the Bill notes that this procedure has become too cumbersome. Accordingly, clause 9 proposes to delete the entire section and substitute new provisions headed as "Representations to the Director-General". Of serious concern is that the entire appeal process has been collapsed and effectively reduced from 70 days to a mere 3 days. Further, an appeal against the decision of the Department official is limited to the Director-General and references to appeals to a court have been deleted.
We are concerned that the amendment may result in serious injustices. Three days is wholly inadequate within which to lodge and prepare an appeal. It also raises questions about its compliance with the right to administrative justice. Our preferred approach would be to provide for the setting up of a permanent structure that would sit as a committee to consider appeals of this kind.
Further, it needs to be made clear that pending finalisation of any appeal process, a person may not be deported. The provisions of the Bill only provide protection against deportation for the three day period within which the application to the Director-General is to be made. This means a person may be deported even before the Director-General has decided the appeal. No time period is proposed to apply to the Director-General’s decision process. Further, there is neither an obligation for the Director-General to actually consider the application or communicate the decision in writing.
Accordingly we are unable to support the proposed amendments.
While we were unable to arrive at general agreement around this issue in the NEDLAC process, the following amendment was agreed to in respect of section 8(2)(b):
"It was agreed that section 8(2)(b) shall be amended to ensure that deportation shall not be effected before the Director-General has communicated his or her decision in writing to the person. Business and Labour retained other objections to the amended review and adjudication processes."
Further, we believe strongly that this clause must be reconsidered in the long term policy review to ensure that the rights of foreigners are not infringed.
Currently in terms of section 19(1) quota work permits may be issued to foreign workers falling into a "category" determined annually by the Minister after consultation with the Ministers of Labour and Trade and Industry. The Bill proposes to qualify the categories by linking the quotas to a "specific professional category" or "specific occupational class". We support this amendment since it has more relevance to the classifications used in terms of the National Qualifications Framework, which recognises all levels and types of skills and experience including that of recognition of prior learning. The current wording of the Act is capable of being applied in a way that discriminates against those considered to be less skilled.
Whilst we have noted our support for the above amendment, we do have reservations about the operation of the quota system. However, if it is to operate effectively we believe that it would require thorough consultation at NEDLAC and should be placed before the Board for consideration. This falls largely within our broad approach to the emphasis on importation of foreign skills to address local skills gaps. This we believe may only be achieved through a balanced approach entailing consultation of key stakeholders in order to provide protection for labour market stability and reduce long-term reliance on foreign skills.
Accordingly we propose the amendment of the proposed clause 19(1) of the Bill as follows:
A quota work permit may be issued by the [Department] Director-General as prescribed to a foreigner if the foreigner falls within a specific professional category or within a specific occupational class determined by the Minister at least annually by notice in the Gazette after consultation with the Ministers of Labour and Trade and Industry, NEDLAC and the Board and as long as the number of work permits so issued for such category or class does not exceed the quota determined in the notice.
Section 19(2) currently makes provision for the issuing of general work permits to foreign workers falling outside the categories relevant to quota work permits. Further, provision is made for the certification of working terms and conditions by a chartered accountant to ensure that foreigners are not employed on terms inferior to those applicable to South Africans. The Bill proposes to delete all references to chartered accountants under work permits as well as in respect of other sections in the Act. In so doing it also removes the obligation to certify labour standards applicable to foreign workers.
We strongly support the deletion of all references to chartered accountants, which effectively constituted privatisation of government responsibilities. Certification of labour standards is not the place of chartered accountants, owing to lack of relevance of training and likely contractual bias towards employers. Also the costs of certification are likely to be passed on to workers.
We believe that certification or verification of labour standards is the responsibility of the Department of Labour(DOL), which is key to addressing enforcement of labour standards and preventing exploitation of migrant workers. The ILO position is that labour departments should play a central role in administering migrant worker policies. However, this point raises another concern in that the Bill now proposes to completely remove certification requirements from the Act. This would amount to a serious reversal of a previous NEDLAC agreement on the White Paper, and would effectively mean that Government would be reneging on an explicit undertaking in terms of that process.
While our preferred option remains certification of labour standards by the DOL, we are proposing the following alternative formulation as an interim measure in respect of sections 19(2) and 21(2)
19(2) A general work permit may be issued by the [Department] Director-General to a foreigner not falling within a category or class contemplated in subsection (1) if the prospective employer—
(a) satisfies the [Department] Director-General in the manner prescribed that despite diligent search he or she has been unable to employ a person in the Republic with qualifications and experience equivalent to those of the applicant; and
(b) satisfies the Director-General in the prescribed manner that the terms and conditions under which he or she intends to employ such foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards.
[(b) produces certification from a chartered accountant that the terms and conditions under which he or she intends to employ such foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any, provided that—]
21(2) After consultation with the Departments of Labour and [of] Trade and Industry, the [Department] Director-General shall determine the maximum number of foreigners to be employed in terms of a corporate permit by a corporate applicant, after having considered—
(a) satisfies the Director-General in the prescribed manner that the terms and conditions under which he or she intends to employ relevant foreigners, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards
[(a) the certification prepared by a chartered accountant on the basis of the relevant prescription or information of the Department of Labour, if any, that at any given time the relevant foreigners are employed on terms and conditions not inferior to those offered to citizens and residents or prevailing in the relevant market segment, taking into account collective bargaining agreements and other standards, if any;]
We wish to note that while Business has not agreed to the above formulation at NEDLAC, the above proposal is supported by Government. Accordingly, we are calling on the Committee to accommodate our proposals noted above.
While labour legislation is uniformly extended to all workers, in practice migrant workers are exploited and often employed below either minimum legislated standards or standards negotiated in collective bargaining processes. The problem is clearly one of enforcement. Much of the DOL’s enforcement of standards for migrant workers is ad hoc and complaints driven. This leaves a large number of migrant workers vulnerable to exploitation, particularly in sectors such as mining, construction, agriculture and private security industry. Accordingly, in addition to our comments above we intend calling on the DOL to develop a strategy aimed at addressing the situation of migrant workers, which goes beyond current ad hoc arrangements.
Further, we wish to note support for the NEDLAC agreement to insert "experience and skill" into section 19(2)(a). This would assist in addressing the non-recognition of informal skills of those workers considered to be less skilled.
i) Lapsing of Work Permits
The Bill retains section 19(3), which provides that a general work permit will lapse unless the holder submits proof of continued employment and of the terms and conditions of employment. This must be submitted within six months of the permit being issued and thereafter on a yearly basis.
If the permit is withdrawn because of the termination of the contract, this will prevent migrant workers from remaining behind to enforce labour rights such as challenging an unfair dismissal or take up transfer of employment contracts with a new employer. Further, there is a need to afford adequate time for the migrant worker to settle personal matters, including any social or familial responsibilities. These constitute the underlying reasons for articles 49(2) and 51 of the 1990 United Nations Convention on the Protection of the Rights of All Migrant Workers.
Accordingly we are calling for an insertion of an amendment in line with the agreement reached at NEDLAC as reflected below:
Subject to the finalisation of specific wording, it was therefore agreed that a work permit shall remain valid in respect of a holder who is no longer employed until the holder has exhausted all rights of recourse – should they so wish - and to settle familial and social obligations." [Emphasis added]
Section 19(5) provides for intra-company transfer permits for a period not exceeding two years. The Bill proposes to delete paragraph (a), which deals with the chartered accountants (CA) certification of the need to employ a foreigner. While we support the removal of CA certification, we strongly believe that the there should be a retention of the requirement to show need to employ the relevant person. This may be verified by the Director-General.
Further, we are strongly opposed to proposals made in the course of the hearings by other organisations calling for amendments allowing this permit to be made renewable and for the two-year period to be extended. For longer periods it would be more appropriate for applicable persons to apply for a general work permit. Our concerns here are related to the use of this section to evade compliance with employment equity legislative obligations.
Section 21(2)(c) of the Bill provides that a corporate permit applicant must provide corroborated representations of the need to employ foreigners. In general we are in support of such measures in order to protect and promote local employment. However, it is important for this to be implemented in a manner that does not produce unintended consequences. Of concern are the implications that this provision has for undermining collective agreements, particularly those that cover an entire industry or sector.
For example, in the mining sector organised labour have entered into an agreement with the Chamber of Mines providing that where a worker has been retrenched or has died as a result of occupational-related injuries or diseases, then a relative of the worker may be considered as his or her replacement. A primary reason underlying this agreement is the high risks attached to employment in the mining industry and the associated socio-economic impact on dependents and family members. As this arrangement has been a feature in the mining sector for some time, it is recognised by the Department of Minerals and Energy.
Further, there is a need to provide protection for foreign workers who may be retrenched owing to downsizing. The provision as it is currently worded may prevent a worker from seeking alternative employment with another employer in spite of early termination of employment.
On this basis we are calling for the insertion of amendments in line with the following NEDLAC agreement reached to address this problem:
Labour noted concerns regarding the failure of the Immigration Act to accommodate collective agreements that provide for relatives to be hired in the place of migrant workers who lose their jobs or die in occupational-related incidents. Agreement was reached to –
(i) insert an additional subsection which reads "waive the requirements of subsection 2(c) under special conditions"; and
(ii) delete the word "reduce" from subsection 21(4)(a) and (d).
ii) Compulsory Deferred Pay
Section 21 of the Act deals with the issuing of corporate permits in terms of which employers employ foreign workers. Section 21(4)(b) allows the remittance of a portion of the salaries of a foreign worker to his/her country of origin. This is commonly referred to as a system of compulsory deferred pay, which represents one of the worse aspects of the migrant labour system since it is subject to abuse and has a negative impact on workers and their families. We believe that this system must be restructured as part of a Southern African regional economic development plan. However, we are conscious of the fact that historically the system of compulsory deferred pay had macroeconomic and social benefits for the sending countries. We also note current efforts in the mining industry to develop a system of voluntary deferred pay.
We have noted that the DHA and DOL have consistently maintained that this provision must be retained as they are obliged to act in compliance with Government’s bilateral agreements with other countries. Notwithstanding this we note that the 1997 Green Paper on International Migration recommended that the system of compulsory deferred pay be brought to an end. In line with this Government should have long initiated a process to renegotiate the relevant bilateral agreements.
Accordingly, we have called on NEDLAC to initiate a process that would include NEDLAC constituencies and would require the involvement of the Departments of Labour, Foreign Affairs and Home Affairs. This process should commence within a stipulated time frame that must be agreed to within the current NEDLAC process.
We believe that the wording authorising the Director General to cancel temporary residence permits does not lay down qualifications on the exercise of this power. Accordingly, we are calling for the insertion of an amendment making this subject "good cause" as reflected below in the agreement reached at NEDLAC:
"Labour expressed concern at the extent of the discretion of the Director-General to cancel temporary residence permits and it was therefore agreed to include the words "For good cause," at the beginning of section 10(9)."
The proposed section 28(b) provides for the withdrawal of permanent residence on the ground of non-compliance. We believe that this should be qualified by a provision allowing for condonation of non-compliance where there is good cause. Accordingly, we are calling for the insertion of the following amendment as reflected in the NEDLAC agreement:
Section 28(b) shall be amended to read –
"(b) has failed to comply with the terms and conditions of his or her permit, and the holder is unable to show good cause for non-compliance."
Further, we wish to note, as reflected in the agreement, that the long-term policy review will need to consider the broader issues in this section and, in particular, the offences listed in the schedules.
Section 34 provides for deportation and detention of illegal foreigners. We share general concerns regarding the implications of this section its potential to be applied in a manner that may not afford foreigners adequate opportunity to pursue their rights. Accordingly we are calling for the insertion of the amendment agreed to NEDLAC providing for a reasonable opportunity for such a person to verify his or her identity or status.