SUBMISSIONS TO THE STANDING COMMITTEE ON THE IMMIGRATION AMENDMENT BILL
The bill became available approximately one month ago and as a result of the Intervening holiday period, very little time has been afforded to us to comment on the proposed amendments to the
immigration Act 13 of 2002 ("the principal").
The purpose of the bill Is eradicate to defects of the principal Act which was caused by Its hurried passage through Parliament In 2003. and as a result of concerns which became apparent In the
implementation of the Act In the past year.
It Is difficult to make sense of the Impact of the amendments without the benefit of the extent of the proposed amendments to the Regulations, which will no doubt In due course be published. The process embarked upon is thus somewhat flawed and Imperfect. It would have been much better had the proposed new Regulations been published with these amendments.
We agree with the deletion of Section 2 of the Act, and the changes to The preamble, and In particular the recognition of NEPAD ln paragraph e of the preamble, We agree of the ablution of the proposed Immigration courts, which was simply Magistrates Courts in any event.
4. We are concerned by the definition of a foreigner, which now Includes a permanent resident (further argument).
5. IT Is trite knowledge that the South African economy is in dire need of skills across a wide spectrum. Simultaneously, the influx of unskilled people should be discouraged, to limit the number of contenders for welfare, and competition for employment,
6, The deletion of the certificate by a chartered accountant Is a source of considerable concern. It was the one aspect of the principal Act which worked really well, We act for a number of large multi- nationals, they need certainty and want efficient service, in effect the Department had outsourced of its function to Chartered Accountants, to certify certain facts. It worked extremely well, and, we submit, that the Department could rely explicitly on the verification and assurances contained in the certificate issued by The Chartered Accountant.
Our concern is that the Department will invariably be unable to undertake the verification process as expeditiously as a private Chartered Accountant.
Our clients rely on us to provide an efficient service. Above all. They need to know If and when temporary or permanent residence permits will be Issued. They are prepared to pay for that certainty and the services of private Chartered Accountant, be It an extra charge, provided that certainty and speed of delivery.
We therefore object strongly to the removal of the facility of a Chartered Accountant to perform the activities contemplated In the principal Act.
7. We are curious to learn why In the proposed amended Section 3, the Minister may delegate any power to, 'an officer or employee In the Public Service". The Director-General, however, may delegate any power to, "an officer or category of officers or an employee or category of employees or a person or category of persons in the Public Service"
Why the difference?
Sub-section 3(3) goes too wide to empower the Minister to review, "any decision given or steps taken by another person under this Act".
That would nationally include decisions taken. In our view, by the Court. We endorse the power to review of the Minister but a proper procedure should be In place to outline the procedure that the
Minister should follow when reviewing a decision.
8, The proposed Section 9(2) is superfluous where It adds the following. "and the Immigration Officer records his or her entrance". This requirement is contained in Section 9(3)(d),
9, Section 9(4) highlights the difficulty with including permanent residents under the definition of foreigners. In terms of Section 9(4)(b) a permanent resident may only enter the Republic if he is Issued with a valid temporary residence permit, Of course he will not require one
as a permanent resident, and should be treated in exactly The same way as a citizen for purposes of this Act.
10. The words "Issued by the Director-General" contained In Section 10(1) Is superfluous.
11. The word "Individual" In Section 10(5) is superfluous.
12. The effect of Section 10A(1) and (5) Is that any foreigner must always have with him, on his person a valid visa, falling which he is guilty of an offence. Secondly, that would Include a permanent resident, Furthermore, the foreigner is liable to be arrested and detained.
13. Section 11(1)(b)(l) proposes that a visitor's permit may not be exceeded for a total of six months. We act for a number of wealthy Individuals, who from time to time, holiday In South Africa for longer than six months, In terms of the principal Act. It Is possible to do so.
This amendment removes that possibility.
The deletion of Section 11 (4) removes the possibility that a visitor may leave and return during the period of the visit. This appears to be unnecessary restriction.
If, as envisaged in the accompanying memorandum, the purpose of the amendment is to "curb the tendency by some foreigners to apply for -me extension of a visitors permit many times over", the remedy for the evil Is to ensure that the application for an extension Is properly motivated and scrutinised by the Department. The answer Is not to do away with the visitors permit beyond a period of six months.
14. Section 15(1) does not define "an appropriate permit" which may be Issued To the Immediate family members of a foreigner who is issued with a business permit, Would that include a work or study permit. See In this regard the provisions of Section 19(4), dealing with The exceptional skills work permit, which simply provides that permits may be Issued to the immediate family members of the foreigner concerned, Why the distinction?
It is important to note that in Section 27(c). dealing with permanent residence on the basis of an Investment In a business in The Republic, the wording relating to The Issue of permits to the foreigners immediate family members differs again.
15. Section 15(1)(a) does not Indicate when the foreigner is required to invest the prescribed financial and capital contribution in the business.
16. With the deletion of the reference to a Chartered Accountant, it is no longer clear how one will be required to prove compliance with the requirements.
17, We agree with the clarification of the work which a foreigner is entitled to do in terms of Section 15(2),
18, We point out the difference in the wording contained in section 15, when compared to the wording contained in Section 27(c), It is not clear why the reference in section 27(c)(11) is to the "Intended" book value of the business.
19, We support the insertion in section 19(2)(a) of the words "and experience". The amendment recognises that qualifications alone are often not as Important as the experience of the applicant.
20. We await with Interest to see what changes will be proposed In lieu of the contribution by the Department of Labour in terms of the provisions of Section 19(2)(b) of the principal Act. It is difficult to comment on the efficacy of the new proposal without the benefit of seeing the changes contained In the Regulations.
21. The new paragraph 19(2)(b) the employer Is required to agree "in writing" to notify the Director-General when the foreigner Is no longer employed by him. In paragraph 19(5)(a) the employer Is not required to "agree in writing". He must simply "undertake". The discrepancy should be cleared up. Furthermore, in the former, the employer simply required to notify the Director-General when the foreigner is no longer or Is employed in a different capacity. in the latter, the employer undertakes to Take prescribed measures to ensure that the foreigner will at all times comply with the provisions of the Act, and will immediately notify the Director-General If the employer has reason to believe otherwise.
The obligations of an employer should be consistent whether the foreigner has a general work permit or an infra-company transfer work permit,
22. We support the addition in Section 26(b) and (c) of the spouse and child of a permanent resident, who qualifies In his or her own right for permanent residence.