NATIONAL ECONOMIC DEVELOPMENT AND LABOUR COUNCIL DRAFT REPORT OF THE IMMIGRATION TASK TEAM REPORT 2004

1. INTRODUCTION

This report presents areas of preliminary accord between the Department of Home Affairs, hereinafter referred to as DHA, and the Nedac constituencies on the draft Immigration Amendment Bill.

2. PROCESS IN NEDLAC

2.1. The Nedlac Immigration Task Team has had four meetings on the draft Amendment Bill. It is acknowledged by the constituencies that this was insufficient to allow for comprehensive submissions on the Bill.

2.2. The Director General gave background information on the Bill, indicating that it was intended to address urgent problems in the Act.

2.3. Government supports the long-term policy review, which will take place with the constituencies. Nedlac constituencies propose that this happen immediately.

2.4. The Task Team is comprised of the following members -

Chairperson: Herbert Mkhize

Government: Les Kettledas, Ian Macun Barry Gilder, Lorraine Makola and

Dikeledi Tlhagale

Business: Vic van Vuuren, Vic Esselaar and Kagiso Moleme

Labour: Prakashnee Govender, Fred Gona, Dawn Le Roux,

Simphiwe Gcanga, and Tony Franks

2.5. The Task Team met on 30 June, 8 July, 29 July and 3 August 2004.

3. AREAS OF AGREEMENT

3.1 PREAMBLE

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.

3.2 IMMIGRATION ADVISORY BOARD

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.

3.3 WORK PERMITS

It was agreed that the words "experience and skill" shall be added at section 19(2)(a).

3.4 CORPORATE PERMITS

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).

3.5 UNDESIRABLE PERSONS

There is concern that the intention of this section is not clear from the wording. Business feels that the meaning of the introductory section in 30(1) should be made clear in the amendment process, whether it is related to the withdrawal of temporary or permanent residence permits once the declaration has been made, or whether it only applies to applications for such permits after the declaration. It was also agreed that this section will be reviewed in its entirety by the OHA during the long term policy review. Labour placed the condition that investigation be undertaken into the human rights and social implications of the application of section.

3.6 WITHDRAWAL OF PERMANENT RESIDENCE

Section 28(b) shall be amended to read -"(b) has failed to comply with the terms and conditions of this or her permit, and the holder is unable to show good cause for non-compliance. It was agreed that the long term policy review will consider the broader issues in this section and, in particular, the offences listed in the schedules.

3.7 IDENTIFICATION

It was agreed that the words "provided that such person is given a

reasonable opportunity to verify his or her identity or status" shall

be added at section 34.

3.8 LAPSING OF WORK PERMITS

Labour raised concern over the effect of the lapsing of a work permit on workers who wished to pursue their rights of redress as well as to settle their familial and social obligations before being removed from the Republic.

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

3.9 ADJUDICATION AND REVIEW

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.

3.10 CANCELLATION OF TEMPORARY RESIDENCE PERMITS

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).

4. AREA OF DISAGREEMENT

CERTIFICATION OF LABOUR STANDARDS

Labour expressed its concern at the removal of the certification of labour standards and proposed that it be replaced by a section reading as follows

s19(2) "(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."

Government agreed with Labour. However, Business did not agree on the basis that certification in its view was not relevant to management or higher level skills, and felt that this matter should be considered in the long-term policy review.

5. AREAS OF CONCERN FOR LONG-TERM POLICY REVIEW

In the Nedlac process a number of issues of significant policy dimensions were raised which, it was agreed, would be addressed in the long-term review process.

6. OTHER ISSUES

It has been agreed that the parties may present their views on issues of disagreement and any other of their concerns which have not been dealt with herein, to the Parliamentary Portfolio Committee on Home Affairs or to any other forum.