Note:

The preparation of an Immigration Amendment Bill (B11-2004) is extremely welcome. The existing Immigration Act (IA), passed into law in 2002 was inadequate in many respects and required either extensive revision or a completely new Act. The fundamental problems with the IA (and the process which produced it) are as follows:

1. The Immigration Act was developed in a policy vacuum by a Minister and his advisors who were not members of the governing party and whose ideas about immigration were not always consistent with government policy.
2. The IA did not arise from or relate to any systematic elaboration of government policy on immigration. The Act was only loosely related to the arguments and recommendations of the White Paper on International Migration (despite their common authorship). Many recommendations in the Green and White Papers were simply ignored in the Act and the Act placed statutory obligations on government that were neither recommended nor justified in the Green and White Papers.
3. The Immigration Act passed into law with extreme haste in order to meet a constitutional deadline. At the time, the Minister argued that this was necessary. In fact, minor amendments to the existing Aliens Control Act would have satisfied the Court. If that route had been followed a hasty and problematic piece of legislation would not have needed to be rushed into law, in turn requiring the current Amendment Bill and the promise of further revision.
4. The Parliamentary Portfolio Committee’s role in the process was sidelined and many public criticisms of the IA by a wide variety of stakeholders ignored. For example, the Committee’s recommendations that the White Paper be revised and a new Act developed were not accepted.
5. At the time of tabling of the IA, SAMP argued that the Act was inconsistent with stated government policy on skills migration and immigration control. SAMP recommended a thorough review of the Act to bring it into line with stated government policy. The IA was found wanting in many respects by business, labour, NGO’s, research bodies and human rights groups, including the South African Human Rights Commission.
6. According to the ex-Minister of Home Affairs the Immigration Act was the product of an "unprecedented" process of public consultation. In fact, there is little evidence that this particular public consultation process made any substantial difference to the original content and substance of the Act. The only substantive modifications to the Act were made at a very late stage following Cabinet review.
7. The IA was premised on the assumption that immigration law should provide only a skeletal framework for governance. Regulations pursuant to the Act, and prepared by the DHA, were to be the primary vehicle for immigration policy. This explains the intense scrutiny, public debate and court challenges to the regulations over the last two years. Regulations should give effect to the provisions of an Act not act, in themselves, as a vehicle for policy formulation and implementation.
8. The regulations pursuant to the Act introduced policies that were not sanctioned by the IA. For example, the heavy training levy on employers of foreign labour which was widely criticized by a variety of governmental and NGO stakeholders. Regulations pursuant to the Amendment Act should be entirely consistent with the Act. Hence the controversial training levy, as one example, should now automatically fall away and not be reintroduced via regulations.
9. Immigration law needs to be consistent with and give effect to government policy. The Amendment Act should be seen as an interim measure to deal with the more obvious problems in the Immigration Act. Beyond that, South Africa’s immigration policy needs a thorough overhaul and new, more appropriate, legislation.

The proposed amendments to the IA are of three basic kinds (a) technical and legal clarifications; (b) substantive changes in the structure of immigration governance; and (c) simplification of the more complex provisions of the Act. It is clear that the Bill (hereafter B11-2004) will result in a relatively thorough revision of the IA. It may not change the basic structure of the Act but the Amendments make significant changes in legislative policy as well as legal language. For instance, only sections 20, 38, 39, 42, 46, and 48 of the Immigration Act are left unchanged, apart from the five transitional provisions of the Act.

In general, B11-2004 seeks to reduce the extensive reliance of the existing Act on regulations as the primary vehicle for immigration policy. Regulations are somewhat de-emphasized with a corresponding twofold shift to placing the policy in the Immigration Act and in the discretion of the Department of Home Affairs. One clear aspect of this shift in policy is that instead of setting up the Department and the Ministry of Home Affairs as a fiefdom where its own rules and defining concepts are made and implemented, we now have an organization and a statute that will attempt to work with (and not against) other pieces of legislation and other components of government. This is to be welcomed.

However, the substance of critical sections of the IA will unfortunately not be modified by B11-2004. These include the two crucial areas of (a) types and terms of issue of a complex variety of work permits; and (b) enforcement of immigration law (another area where the regulations reached beyond the Act). These sections are as problematic as they were when the IA passed into law.

If, as reported in the media, the government’s intention is to put in place new policy and a new law through a longer-term review process after passage of B11-2004, the question then arises: should B11-2004 have anything to say about that process? At present, B11-2004 does not say anything regarding the longer-term review process, leaving that entirely to the discretion of the government. In order to entrench the obligation on government to undertake this longer-term policy review process, B11-2004 could be amended.

Changes are proposed to the pre-amble to the IA. B11-2004 proposes to eliminate references to (1) "public inputs" in policy formulation (section c), (2) the General Agreement on Trade in Services (GATS) (section d), and (3) effective deterrence of illegal immigration (section e).

B11-2004 adds welcome reference to (1) the need for scarce skills, investment, and tourism and to (2) the role of the Republic in the region and the continent.

The primary disadvantage of the revised Preamble is the elimination of section (c), the undertaking that government will consult publicly on immigration law and regulations. In an area as contentious as immigration policy, with a wide variety of affected stakeholders including every single resident of the country, real consultation is essential. There is no persuasive reason why this should not continue. Many of the problems with the IA could have been avoided if it had been the product of a real consensual, consultative process.

Clause 3 repeals the whole of IA section 2 headed "Objectives and structures of immigration control". According to the Explanatory Memorandum, section 2 "does not serve any meaningful purpose". It is true that section 2 encompassed such a wide range of objectives as to lack any meaningful policy direction.

However, certain clauses in section 2 did clarify important general policy objectives, including (i) promoting a human-rights based culture in respect of immigration control (section 2(1)(a)); (ii) preventing and deterring xenophobia within the Department of Home Affairs and civil service (section 2(1)(c)); (iii) deterrence, detection and punishment of illegal crossing of borders (section 2(1)(h)); (iv) integration of functions, harmonization and cooperative relations among all organs of State (section 2(1)(i); (v) promotion of economic growth through employment of needed foreign labour, facilitating foreign investment, enabling entry of exceptionally skilled or qualified people, increasing skilled human resources, facilitating academic exchanges within SADC and promoting tourism (section 2(1)(j)(aa-ff); (vi) facilitating compliance with the country’s international obligations (section 2(2) (c); (vii) educating civil society on the rights of foreigners and refugees (section 2(2)(e) and (viii) empowering to contract through public tender certain immigration functions (section 2(2)(k)).

These are lost if section 2 is deleted in toto. Even the revised Preamble does not make reference to many of these propositions that clearly state the objectives and functions of immigration control. Rather than reinstating section 2, it would be easier and preferable to make sure that the new Preamble covers all germane areas excised by the elimination of section 2. Several new clauses are recommended for inclusion in the Preamble.

The shift to legislation as the primary site of policy is a positive development. However, the shift of B11-2004 away from regulations should be understood together with the reduction in the mandatory public participation in regulation making and with the proposed reduction in the advisory role of the Immigration Advisory Board and its re-orientation towards a function of government liaison.

As proposed by B11-2004, the Immigration Advisory Board of IA section 4 would no longer have any direct implementation or review responsibilities. The Board would no longer have the power to review the decisions of the Department. The new Board would still have some advisory functions, although those would be lessened in importance. The Board will have advisory powers over a specific list of topics for regulations. The Board may be appointed anew by the Minister.

There are some significant proposed changes to the personnel of the Board. A few government representatives are added: new representatives of the national intelligence co-ordinating committee and the department of justice and constitutional development. The level of participation of government representatives is specified: Deputy Director-General.

This realignment of the Board drops the number of civil society representatives from five to two (specifically from business and labour) as well as five appointees in their individual capacity based on a set of control rather than rights-oriented criteria ("their knowledge, experience, and involvement pertaining to immigration law, control, adjudication, or enforcement").

The effect of B11-2004 would clearly be to reduce the advisory role of civil society and human rights experts on the Immigration Advisory Board. The advisability of this is debatable (given the fact that immigration policy impinges upon many civil society interests and should be informed by human rights and gender equality considerations). Government could actually benefit from a more active civil society advisory role on the IAB.

Recommendations: Amend section 4(1)(l) to read "up to five individuals appointed by the Minister on grounds of their expertise in administration, regulatory matters or immigration law, control, adjudication or enforcement, human rights and gender equality."

The deletion of the DG’s duty of establishment of an inter-departmental liaison committee is replaced by an additional function for the IAB, that of a forum for liaison within government. Given that the IAB has non-governmental representatives for the Board’s advisory role, it is unclear how the Board can serve an effective liaison function for government alone.

5. Public Consultation Requirement (section 7)

In a potentially controversial move, B11-2004 would effectively delete much of the IA section 7. This section currently provides a statutory duty for regulations to be taken through a notice and comment process. Without such an explicit statutory duty, there is no duty on the Minister or Cabinet to allow for any public notice and comment for regulations made in terms of the Immigration Act. In completely removing the requirement for public comment, B11-2004 goes against the more recent drafting trend of including such notice and comment provisions in primary legislation.

However, the section 7 duty of notice and comment currently in the IA is unnecessarily extensive. For instance, the Minister needed to respond to each public comment in footnotes in the regulations. Likewise, the definition of "publish" includes a cumbersome requirement to maintain and work with an email list of interested persons. This definition of publish is deleted, including the email list provision. The removal of these onerous requirements is to be welcomed.

Section 8 of the IA sets out a package of appeal and review procedures. Department decisions could be appealed first to the Director General and second to the Minister (and third to a court). Specific deadlines were statutorily mandated. The Department has found these procedures difficult to comply with. According to the Explanatory Memorandum, the old section 8 provisions were "cumbersome and make effective immigration control unachievable." B11-2004 proposes to do away with these statutory appeal and review procedures entirely.

The result would be that only the general provisions of the Promotion of Administrative Justice Act (PAJA) would apply to administrative action taken in terms of the Immigration Act (as well as the constitutional right of just administrative action). The PAJA gives some detail to the right of administrative justice but does not set clear deadlines. While the PAJA is not yet enforceable in magistrates’ court, PAJA issues will eventually be justiciable in magistrates’ courts.

B11-2004’s version of section 8 is intended to be more "user-friendly". It provides for review to the Director-General of two limited classes of decisions: refusals of entry and determinations as an "illegal foreigner." In respect of these decisions, the reviews are to be done either immediately or within three days. This is unlikely to provide any substantive reconsideration of the refusal of entry.

Moreover, this provision leaves out of its ambit all the remaining administrative decisions made by the Department, such as the granting of temporary residence permits or the extension of temporary residence permits (in new section 10(7)).

With the nearly complete elimination of section 8 and the re-orientation of the IAB, the only potentially effective alternative provision made for any structure of internal appeals is done with respect to the Minister.

In addition to providing for standard delegation of powers of the Director-General and the Minister, Clause 4 of B11-2004 would also provide for a general power of review in the Minister over any decision made in terms of the Act. This is a potentially far-reaching power of internal review. However, it is completely without structure or resources to make it effective. In part, this is because the review power itself must be exercised personally by the Minister and may not be delegated.

The replacement section for section 8 is not only much narrower but also much more strict. IA section 8(4) also contained the substantive prohibition that no person could be deported before the appeal process was finalized. That is gone. And the safeguards in place are susceptible to constitutional challenge. The proposed alternative internal appeal system dates directly from the Aliens Control Act and is hopelessly inadequate.

Another aspect to this section concerns the Constitutional Court decision in LHR v MHA. Here, the Court depended upon section 8 in its statutory analysis. Without section 8 (or some equivalent), it is likely that the Act would be susceptible to constitutional challenge on the grounds avoided in LHR v MHA. This may be particularly relevant with respect to section 8(5).

In several respects, B11-2004 extends the scope of Home Affairs control.

(a) Clause 11 amends IA section 10 to make explicit that the DG can withdraw temporary permits under certain minimal conditions of notification, the granting of "a period stated in the notice" and the making of representations to the DG. There is apparently nothing here preventing the DG’s withdrawal of a permit in writing with a period of one hour, and then rejecting the representations.

Clause 11 also puts into effect a rule that may have drastic consequences. Clause 11 would add a new section 10(8) to the effect that "An application for a change in status does not provide a status does not entitle the application to any benefit under the Act, or to sojourn in the Republic pending the decision in respect of that application." This put the applicant at the mercy of the speed of the decision within the Department of Home Affairs.

To some extent, the effects of this rule are limited in that it is triggered only by an application for a change in status. However, status under the Act means permanent or temporary residence. It would seem that an application by an "illegal foreigner" for temporary residence would then be statutorily precluded from having any effect. This would presumably result in lessened legalization applications.

This should be seen in context of Clause 33’s amendment of IA section 32, allowing the DG by regulation (rather than the Department by discretion) to mitigate the "shall depart" rule. While the regulations will need to respect the rule laid down by new section 10(8), the regulations would now presumably provide for a regulatory privilege to remain, a precarious status indeed.

(b) A similar change would be introduced by Clause 41, which contemplates amending section 43 to provide that a status shall expire upon violation of conditions of a permit. Presumably, the Department would adjudicate these violations themselves. Thus, upon any minor deviation from a permit, a permanent resident or a temporary resident would be relegated into the status of an "illegal foreigner" without any formal administrative process. This seems an example of excessive control.

(c) Clause 29 adds as a ground of prohibited person status anyone found in possession of a fraudulent residence permit, passport or identification document. This would appear to be a huge leap backwards. The proportion of the population with fraudulent documents is probably large. This mandatory provision removes all flexibility in dealing with this problem. It represents a further step towards a de facto criminalization strategy rather than an employer sanctions or criminal justice strategy of migration regulation. It would for instance say that a child for whom a parent had obtained fraudulent documents would automatically become a prohibited person. This should be opposed or at least strengthened through mens rea requirements.

(d) In a number of areas, B11-2004 engages in criminalization.

Other innovations of B11-2004 which have the effect of increasing migration control appear to make good policy sense. Clause 34 amends IA section 33 to statutorily establish the inspectorate, rather than through regulations. The establishment of this inspectorate will arguably provide greater managerial cohesion to migration enforcement. Clause 40 amends IA section 41 regarding identification to provide for three responses: citizen, permanent resident, and foreigner. Clause 40 also provides explicit statutory authority for an interview leading to potential arrest and detention. Section 47’s statutory duty to establish an internal corruption unit would be deleted by Clause 44. As in the definition of port of entry, in some cases, the regulation and control is extended: e.g.. Clause 10 amends IA section 9 such that citizens are no longer statutorily exempted from migration regulation and will have to report to ports of entry.

In a number of ways, B11-2004 represents a retreat from the treatment by the Immigration Act of permanent residents on a basis of equality with citizens.

(a) The definition of a resident is deleted. Instead, a definition of a permanent residence permit is inserted. The change of defining a foreigner to be not a citizen is a potentially big change. It puts permanent residents into a category apart from citizens, rather than in an inclusive category with citizens as residents. This change seems to go contrary to the import of the Constitutional Court case of Khosa.

(b) The substantive category of undesirable persons is now stated to become preclusive of eligibility for permanent residence. Because undesirable person status is much more easily attained than prohibited person status, this may well have a significant effect of denying eligibility for permanent residents to a greater number of persons than before. Still, these exclusions are at a relatively high level and are more significant than status as an illegal foreigner.

(c) The status of permanent residents would become more precarious. Clause 29 amends IA section 28 to add failure to comply with terms and conditions of a permit as a ground for withdrawal of permanent residence. Additionally, Clause 29 amends IA section 28 to take away the 4 year tolling on Schedule 1 and 2 offences as an opportunity for withdrawal of permanent residence status. This means that an offence committed an indefinite number of years ago may be cause for withdrawal of permanent residence status.

(d) In a related provision, Clause 32 of B11-2004 would change IA section 31, clarifying that section 31 exemptions are privileges not rights and giving power to the Minister to withdraw exemptions so granted.

The redefinition of permanent residents on the model of foreigners rather than of citizens will have direct and immediate consequences for persons with permanent residence. For instance, such a change would mean that permanent residents would be liable to become illegal foreigners and to be deported.

B11-2004 removes the market mechanism of chartered accountant certification from the implementation of immigration policy. According to the Explanatory Memorandum, the CA requirement was "cumbersome and not very useful." B11-2004 thus rolls back to some extent the privatization of administration attempted by the 2002 Act. Under B11-2004, Department officials rather than CAs will evaluate application criteria.

For instance, clause 27 of B11-2004 amends IA s 26 (keeping direct residence) and clause 28 of B11-2004 amends IA s 27, keeping residence on other grounds, but both new sections drop the CA participation in the process of applying for or being directly granted permanent residence.

In addition, the element of Department of Labour certification is also dropped by both clauses. Instead, the new process is an application with evidence proved to the satisfaction of the DG. It does not seem as if this is a substantive marginalization of the role of the Department of Labour since the DoL certification was only exercised as a form of oversight of the CA certification.

Two new sections dealing with visas and transit visas are added. The conditions governing these visas and transit visas are made by the Minister who may also grant exemptions. Visa exemptions will thus not be done by regulation but rather through Minister decision. This will allow for greater consultation with other government departments and is intended to simplify the process of determining which countries are exempted from visa requirements, although the determination-exemption process will lack public transparency.

It may be that the requirement that persons have a transit visa even in the transit areas of the ports of entry will have an impact on the abuses that have occurred within the transit areas of, for instance, JHB International Airport.

Visitor’s permit are governed by IA section 12 and, in terms of 12(1), are granted for up to three months. Clause 13 of B11-2004 would limit a renewal of a visitor’s permit to a single period of a further three months.

Section 12 and thus the category of diplomatic permits is proposed to be abolished as superfluous to Diplomatic Privileges and Immunities Act 37 of 2001. See section 31 putting diplomats in a category with those persons under authority of the 1930 and 1937 Acts. This seems cumbersome itself and to place certain persons outside of residence regulation.

Clause 22 shifts ministerial responsibility for designating industries for relaxation of work permit requirements from the Minister of Labour to the Minister of Home Affairs.

Clause 23 seeks to change the education exchange permit to cover private learning institutions as well as public ones and to remove the requirement of consultation with the Board.

B11-2004 tightens existing immigration control over work-related activities.

In terms of Clause 21, work permits would require "satisfactory proof" of employment within six months of issue or every year thereafter. Work is given a wider scope and the concept now includes short-term activities as well as the activities of a profession, even without reward. Thus immigration permission at the work level is needed for any professional activities. This would seem to be very restrictive. For instance, a visiting lawyers’ delegation would apparently need a work permit. So too might conference delegates.

Presently, the Immigration Act provides that illegal foreigners may only be detained at places under the control and administration of the Department of Home Affairs. B11-2004 would relax this requirement, by clause 35. This would allow for detention of illegal foreigners at police stations and other places other than under the control and administration of the Department.

This raises the question of the control of Lindela. What authority is there in the Act (as amended) for detention at Lindela? This would presumably be a determination by the DG. There is little transparency in the determination of places of detention. It would seem that this is an appropriate subject for clarification in the Act itself.

Clause 35 amends IA section 34 inter alia to add a 30 days provision, in response to LHR v MHA. However, compliance with the decision is given very narrowly, as it is limited to a ship.

Immigration Courts are now simply magistrates courts. The removal of this provision from the Act, which was a longstanding matter of contention with the Department of Justice and Constitutional Development, is to be welcomed.

Clause 24 clarifies that the IA section 23 permit is an asylum transit permit. However, it also restricts the eligibility to persons at ports of entry. This seems incorrect and would not cater for the situation of an illegal foreigner who became a refugee sur place, for instance.

Clause 48 would put in a simpler schedule of laws repealed by the Immigration Act: the whole of the Aliens Control Act. This means that the old Schedule 3 phase-out of the Refugees Appeal Board is no longer. This raises the policy issue of whether an amendment of the Refugees Act to replace the Refugees Appeal Board with magistrates’ courts is to be supported.

IA s 23(2) as amended would appear to potentially override the principle of non-refoulement and seems over broad. While these matters impact more broadly than refugee law, it is not clear whether the Immigration Act as amended by B11-2004 would comply with Mahomed. The compliance of B11-2004 with LHR v MHA may also be an issue in light of the changed definition of "conveyance" and the deletion of definition of the term "ship".