PRESENTATION
TO THE SELECT COMMITTEE ON HOME AFFAIRS, ON THE IMMIGRATION AMENDMENT BILL, 2004; 24 AUGUST 2004 The Director-General immediately set up a Task Team, which held a workshop on the weekend of the 29th to 30th May where areas of the Act, which could be amended in the short term were flagged to make the Act workable. In this process it was also decided that to a large extend the amendments will not affect the overall immigration policy and for this the permit regime in the current Act remains untouched. Following the workshop the smaller Task team was appointed to immediately commence with the drafting of the Bill itself.
The Bill was presented to the Committee of Ministers appointed by the President on the Immigration Regulations chaired by the Minister of Home Affairs Mrs. NN Mapisa- Nqakula on the 8th June 2004, where it was considered and approved. The Bill was subsequently submitted to Cabinet on the 23rd June 2004, and Cabinet gave the Department the approval for the presentation of the Bill to Parliament, subject to consultation by the Department with NEDLAC. The consultation with NEDLAC took place in two meetings and a NEDLAC report will be duly presented to this Committee. Subsequent to the above the Bill was formally presented to the Portfolio Committee of the National Assembly on Home Affairs on the 2"d August 2004, where various members of the civil society and public constituencies made representations on the Bill. Thereafter the Bill was deliberated by the Portfolio Committee, and certain additional amendments were proposed, which amendments will be dealt with in detail here in under.
It is the result of this process that has enabled the Department to be here today to present the urgent amendments, which have now been consolidated into the document before Parliament today, the Immigration Amendment Bill of 2004. The Bill contains in detail areas of the Act that the Department seeks to amend, however for purposes of expediency, I will highlight the major objects of the Bill as follows:
1. The Preamble has been amended to exclude superfluous provisions and the remnants of what was scrapped from the original immigration Bill, and to emphasize the objects of the amendments in general regarding:
• the need for the Country to attract scarce skills and that there should be the transference of such skills from the foreigners to our citizens, a point even emphasized by the President in is speech.
• The role of our Government in the development and growth of the Region and the continent.
• To exclude the role of the Department of Home affairs as the lead Department in controlling the borders of the Republic.
• To limit the role of the Department in combating xenophobia to the department and interdepartmental. While the department acknowledges that Xenophobia has to be combated at all levels of society, it will be rather difficult for the department on its own to take the responsibility of combating xenophobia, this might have extensive legal implications.
2. Regulation making process: Section 7: The Regulation making process has been amended to make it less cumbersome and onerous, and further to bring it in tine with other government Legislation where a Minister is empowered to make Regulations. In terms on the amendment the Minister will make Regulations in consultation with the Immigration Advisory Board. It should be noted that although this does not appear from the amendments, the regulations will be published and public comments will be solicited. The Minister will no longer be required to respond to each and every comment and publish such comments with such comments with footnotes.
3. The Immigration Advisory Board: 3.1 The composition:
a) The Government Departments represented on the Board will include Department of Justice and the National Intelligence Coordinating council (NICOC) to the membership of the Board.
b) The Chairperson of the Board will be a member of the Board designated by the Minister.
c) The Minister will no longer appoint civil society members of the Board by soliciting public nominations.
d) Representatives of Government Departments will be at least at Deputy Director-General level.
e) Matters of the powers of the Minister to remove a member of the Board as well as the operations of the Board will be prescribed.
f) The staff assisting the Board shall be officials of the Department designated by the Director-General.
3.2 Powers and functions of the Board:
a) The powers of the Board have been refined to reflect its advisory role.
b) All the requirements in terms of the Act to consult the Board have been deleted.
c) The Minister will reserve the right to refer whatever matter she/he deems necessary to the Board for advice.
d) The Board will also for basis for interdepartmental coordination on matters of Immigration.
4. Review/adjudication procedures in terms of section 8: The review processes have been reviewed in alignment with the Promotion of Administrative Justice Act. The review procedures have been provided for:
4.1 In general, in the newly section 3(2) & 3(3) of the Bill, which make it possible for our clients to refer any decision of an official of the Department to the Director-General and then to the Minister for review; and
4.2 In particular, in the newly introduced section 8 dealing with illegal foreigners at a Port of Entry and those who are caught within the Republic, and ss 10(8) & (9) which provides that before the Director-General withdraws a permit he is obliged to notify the holder and inform him of the reasons for cancellation, and allow such person to make representations before he takes the decision.
5. The following provisions have been deleted from the Act in no order of sequence:
5.1 The Training/Judicial Fund: This is one of the remnants of the old Bill, which was intended at levying a percentage of the salaries of work permit holders which levy was aimed at training our nationals. We all know that the legal mandate to levy such fees falls under the Department of Labour under the Skills Development Act.
5.2 The requirement for Chartered Accountants certificates. It was considered that the Department should be able to do certain verifications itself, and in certain instances where it is really necessary, such certificate may be required by Regulations, for instance with regards to Business permits.
5.3 Section 2 dealing with the Objects and powers of the Act was scrapped as it did not add value to the Act. Certain provisions from the section were provided for substantively elsewhere in the Act, for example section 2(1)(l) which provides for the Departments power to charge fees and deposit. This provision will now be prescribed by regulation in terms of section 7
5.4 Powers of the Department: This section will be amended to give effect to the following scenario: The Minister retains Executive powers, which may be delegated, save for certain powers which may not be delegated for example powers of the Minister to make Regulations, appoint Board members and to grant and withdraw visa exemptions. Powers to take Administrative decisions vests in the Director-General, which powers may be delegated. This include powers to issue all permits The rest will be deleted.
5.5 Interdepartmental coordination, Section 6: This section provided for the Director-General to convene an interdepartmental coordinating body on the matters on Immigration. It was considered that there already exists other interdepartmental bodies where immigration matters are discussed like the RCOCC JHPS
5.6 The recording of entry and departure of Citizens: The current Act prohibited the recording of entry and exit of citizens into the Republic, an issue which was not well received by security communities. The Director- General received concerns in this regard from among others, the Statistic
South Africa, the Reserve Bank and the SAPS. The Bill will introduce provisions that will allow the Department to record entry and exit of citizens and this will be provided for in section 9 dealing with entry and exit.
5.7 Immigration Courts-Section 37: This is also one of the remnants of the old Bill, which sought to privatise Immigration control and create special Immigration court. It was considered that while Immigration is a special field that required certain expertise, it is however not necessary to legislate such courts. The only reference to a court in the Act is to a magistrates court for criminally related immigration matters, while judicial review of all administrative actions will be referred to the High court.
5.8 Diplomatic permits: can only be issued by the Department of Foreign Affairs. The section dealing with Diplomatic permits has therefore been deleted.
6. The following are the rest of the other general and technical amendments that are included in the Bill:
6.1 Visas: There is a new section on visas which will deal with among others, the requirements for a visa, the power of the Minister to exempt a foreigner from the visa requirements and a corresponding power to withdraw such an exemption.
6.2 Definitions: The following definitions were reviewed and amended:
a) Admissions: The definition of admission was amended to define the word and not make it an enabling provision as it presently was in the principle Act
b) Border: The definition of border was amended and defined to mean borderline and no specific reference will be made to coastlines, ports of entry, outer margin and territories.
c) Customary marriage: The current Act's definition of customary union went beyond the definition of customary marriage in terms of our South African Laws. The definition of customary unions was amended and brought in line with the Recognition of Customary Marriages Act.
d) Deportation: The definition of Deportation was amended to also refer to those foreigners who are removed voluntarily and not necessarily in detention.
e) A Foreigner is now defined as a person who is not a citizen. An Illegal foreigner is defined to refer to all persons in contravention of the Act including prohibited persons.
f) Marriage: the definition of marriage is amended to mean a marriage concluded in terms of the marriages Act and any laws of a foreign country.
g) Resident shall mean holders of a Permanent and Temporary Residents permits.
h) The definition of Spouse will be brought in line with the constitutional court Judgment, and it will include a permanent heterosexual and homosexual relationship as prescribed.
i) Conveyance: shall refer to all means of transport, and in specific terms where a certain type of conveyance is referred to the exclusion of others, eg, ship, such conveyance will be dealt as such contextually.
6.1 Immigration officers: The Bill now makes clear provision for Director- General to appoint Immigration officers. The current Act only implied these powers in the definition of Immigration Officers. The functions of the Immigration officers will be prescribed by regulation.
6.2 Transit visas and permits: The Bill makes provision for these permits to enable he Department to take better control of the Transit facilities.
6.3 Asylum transit permits: This permits will be issued to foreigners who report at a Port of Entry and claiming to be asylum seekers. The permit will give such foreigners 14 days to proceed to a Refugees Reception Centre
6.4 Cross border permits: Facilitate the movement of those foreign nationals v and their residents who require to travel across the Boarder frequently, without having to report to an Immigration Officer for examination each time.
6.5 Certain conduct was criminalized: for example the possession of fraudulent travel documents and permits. Foreigners found in possession of these document will be declared prohibited persons.
6.6 Schedule 3: Which sought to amend the Refugees Act. It was considered that the amendments will be done in the Act itself.
6.7 Accommodation Business to keep registers of foreigners staying at such facilities.
6.8 Illegal foreigner can no longer get visitors permit but authorisation to remain in the country pending status.
Portfolio Committee amendments
1. Preamble:
1.1 To rephrase paragraph (d) as follows: - Economic growth is promoted through the employment of needed foreign labour , the facilitation of foreign investment, enabling the entry of exceptionally skilled and qualified people, increasing skilled human resources, facilitating academic exchanges within SADC and promoting tourism.
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1.2 The addition of paragraphs: (n) dealing with a Human rights based culture of enforcement; - (o) dealing with the compliance with our international obligations: and - (p) dealing with the education of civil society in respect of the rights of foreigners and refugees.
1.3 Paragraph (c): to insert the words " and public consultations enrich" after the word "coordination" and to omit "constantly enriches", on page 3, line 3.
2. Clause 2-Section 1: Definitions: Technical amendments were made to the following definitions:
a) Deportation: to insert the words "deport or" on page 4, in line 17.
b) Status: to insert the words "Status of a person as determined by the relevant" on page 5, in line 50.
c) Permanent residence: to insert the word "permit" on page 5, in line 51.
3. Clause 4-Section 3: Delegation of powers and Review
3.1 It was proposed in Clause 4 of the Bill (i.e. section 3) that section 3 be given a new heading, namely "Delegation of powers", therefore deleting the word "review" from the heading. Meaning that Review processes will no longer be provided for in this section but rather in a separate section, to be dealt with hereunder. Further technical amendments were made to align subsection (1) with subsection (2) with regards to the
category of officials to whom the Minister and the Director-General may delegate their powers.
4. Regulations: The proposed amendments to section 7 are of a technical nature, in particular, wherever applicable, the words "prohibited persons" are substituted with the words "illegal foreigner", and subsection (f) is deleted as it not envisaged that Prohibited persons will be allowed sojourn in the Republic. A further insertion will be made is subsection (e) to read "requirements for the issuing of permits and certificates and the conditions to which such permits or certificates may be subjected".
5. Review and Appeal procedures
5.1 As already mentioned in paragraph 3 above the review processes in the Bill were separated from section 3 and were amplified in section 8 so that all review procedures in terms of the Act will now be dealt in one section. The following provisions were added to section 8:
(3) Any decision in terms of this Act, other than a decision contemplated in subsection (1), that materially and adversely affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompanied by the reasons for that decision.
(4) An applicant aggrieved by a decision contemplated in subsection (3) may. within 10 working days from receipt of the notification contemplated in subsection (3). make an application in the prescribed manner to the Director-General for the review or appeal of that decision.
(5) The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision.
(6) An applicant aggrieved by a decision of the Director-General contemplated in subsection (5), may within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for the review or appeal of that decision.
(7) The Minister shall consider the application contemplated in subsection (6). where after he or she shall either confirm, reverse or modify that decision." 7. Section 9 dealing with the requirements for admission and departure was amended to include the Minister's power to grant and withdraw the exemption from the requirement to hold a passport, to delete certain provisions from this sections, which were superfluous and to correct certain technical mistakes.
8. Section 11-Visitors permits:
8.1 Due to the amendment to the definition of "work", the Portfolio committee at the public representations noted that certain foreigners seeking to visit the Republic for short periods of time to undertake certain activities which are work related but may not necessarily require a work permit, eg, a model who comes for a photo shoot, a film crew on location, a lawyer who comes to consult with his/her client etc, may not be able to conduct these activities.
We therefore inserted a provision in section 11(2) that reads "unless authorised by the Director-General in the prescribed manner and subject to the prescribed requirements and conditions".
8.2 In view of the amendments made to the section 26(a) dealing with Permanent residence on the basis of marriage to a citizen, provision was also made for an additional visitors permit, to be issued to the foreign spouse, on condition the Director-General is satisfied that a good faith spousal relationship exists, with certain other requirements.
9. Section 19(2): Work permits: The following amendments were proposed in view of the NEDLAC report:
9.1 The retention of the Labour certification to the effect that the foreigner will be employed on the salary and standard that is not below the normal labour standards for citizens.
9.2 A work permit will be valid for a further period of 6 months in respect of a foreigner, whose employment is terminated, until he/she has exhausted al rights of recourse.
10. Section 26(a): Permanent Residence: Section 26(a) was amended to allow a foreigner married to a South African citizen to only qualify to apply for permanent residence after five years of such good faith spousal relationship has been in existence for the period of five years and provided that such permit may lapse if the spousal relationship ceases to exist within two years of the granting of such permits.
11. Other means of conveyance: The owners of other means of conveyance will now have the responsibility to remove any illegal foreigner brought to a Port of entry by such conveyance, and may also be liable for fines and certain expenses, in terms of section 35(8).
12. Identification of persons: Section 44 will be amended to oblige Immigration officers to interview persons reasonably suspected to be an illegal foreigner and to take reasonable steps to assist such persons in verifying their identities.
13. The rest of the Portfolio Committee amendments are of a technical nature.