SUMMARY OF SUBMISSIONS ON THE IMMIGRATION AMENDMENT
BILL (B28 – 2006)
The Portfolio Committee on
Home Affairs invited organisations and individuals to make submissions on the
Immigration Amendment Bill, 2006. The Committee received four submissions –
three organisations (PriceWaterHouseCoopers, The Law Society of South Africa
and Business Unit South
1.1 Submissions
made by organisations
PricewaterhouseCoopers welcomes the amendments
proposed in the Immigration Amendment Bill, however, it draws attention to the
need for confirmation and/or clarification with regard to the impact of the
amendments on the international business community.
PricewaterhouseCoopers
welcomes the re-introduction of the authorisation that will enable persons with
foreign employers not assigned to a subsidiary, branch or affiliate to provide
services in
The company also welcomes the provision made in
Section 11 (1)(b)(iv) of the Bill, which provides that spouses may obtain an
authorisation to work on a visitor permit. The business community will, particularly,
support this in that it will enhance
PricewaterhouseCoopers
requests confirmation pertaining to the ability of spouses to work
in
PricewaterhouseCoopers
supports the increase of an intra-company transfer permit to 4 years. However,
this still falls short of industry requirements and is not consistent with the
tax laws that provide for a 5 year window of physical presence before tax
residence. There are a number of international companies that apply for a 5
year period for their international secondments. It is therefore recommended
that intra-company transfers be increased to a maximum of 5 years.
Furthermore,
PricewaterhouseCoopers notes that the Department of Home Affairs plans to
introduce a provision that where intra-company transfer has filled a position,
no foreign national may fill the position subsequently. PriceWaterHouseCoopers
envisages that this would be of great concern to the multinational business, in
particular, business where senior and middle management are always from the
country of the parent company. Introducing such a provision would be a
regressive step and would make intra-company transfer a significantly less
attractive option resulting in the necessity to pursue different permit
options, such as a general work permit, which, due to the current requirements
is a barrier to the quick movement of staff across borders required by
multinational companies. PricewaterhouseCoopers strongly recommends that no
provision should be introduced to limit the application of intra-company
transfers. It would welcome Parliament’s confirmation on this matter.
PriceWaterHouseCoopers
welcomes this amendment.
PriceWaterHouseCoopers
awaits the introduction of the revised quotas.
Business
Unit South
It is corrective to include
cross-border and transit permits.
Business
Unit South
Business
Unit South
Business
Unit South
Section
20(1)(a) is accepted.
Section 26
The deletion of the
requirement to confirm the permanent residence permit when the child turns 21
is fully supported as it eliminates unnecessary bureaucracy and its
accompanying expense.
Business
Unit South
Business
Unit South
Business Unit South
Business
Unit South
1.1.3
The Law Society of
The Law Society of South
Africa records that it considers that more time needs to be allowed for amendments
to the Act to be properly designed and for the Department of Home Affairs to
engage in a bona fide consultation with stakeholders.
Section 1(a), (b) and (d)
The Law Society of South
Africa is concerned that the provisions in this section will have the effect of
narrowing the current parameters of whom or what will constitute a ‘partner’.
This will in effect discriminate against the Small Medium Micro Enterprises
(SMMEs) sector in that whereas small companies need to be able to link up in
informal relationships with potential offshore partners rather than incur the
costs of drawing up and concluding formal memoranda of understanding and joint
ventures and the acquisition of shares.
Furthermore,
the Law Society of South Africa submits a query on the definition of ‘associate
member of a company’. Thus far, it has not been able to find the definition in
the Companies Act. Therefore, a clear definition of this phrase needs to be
developed. The term ‘member’ when used in the context of companies and the
Companies Act, describes a shareholder of a company.
Section 11(2)
The Law Society of South
Africa submits that the current wording of Clause 4(b) will not allow the
Minister to prescribe in the Regulations to the Director General in what
circumstances or for what reasons such permission to work may be granted in
this category.
The
Law Society of South Africa argues that the net effect of linking the quotas in
section 27 to those in section 19(1) has the effect of limiting those persons on
work permits and who wish to apply for permanent residence to qualify under
section 26(a), unless they have exceptional skills and that is a major policy
shift. This proposed measure in fact places the affected foreign nationals in
the same position as the foreign spouses of South African citizens (and of
permanent residents) who have to wait for 5 years before they qualify for
permanent residence.
The
Law Society of South Africa proposes the following recommendations:
The
Law Society of South Africa argues that the proposed amendment will have
significant implications for the Department of Home Affairs and may result in
litigation processes, if the provision remains as it is.
The
Law Society of South Africa queries whether an offence in terms of section 50
qualifies to attract the penalty contemplated in the amendments included in
this section. The Law Society of South Africa requests clarity on this.
The
Law Society of South Africa also queries the provision that requires the
Director General to make a decision to withdraw a person’s permanent residence.
The decision is not subjected to any appeal or review in terms of section 8 of
the Immigration Amendment Act. This will have major implications to the
affected persons who can include the minor children. This measure, according to
the Law Society of South Africa, along with section 38(4) is further watering
down the status of permanent residents. This provision is made despite repeated
pronouncements on the subject by the
The
Law Society of South Africa also finds section 8(1) unclear, in which the
Minister is empowered to review a finding that a person is an illegal
foreigner, whilst the Director General’s decision to withdraw a person’s
permanent residence is not subjected to any review. The Law Society of South
Africa recommends that section 8(1) be amended to include a decision in terms
of section 28.
The
Law Society of South Africa observes that the Amendment Bill uses the wording
in 10(b), as was contained in the 2004 Amendment Act, to require persons who
had been granted a status under the previous Act, to bring their files into
line with the new requirements when they apply for extensions. This practice,
according to the Law Society of South Africa is in contravention of section
12(2) of the Interpretation Act and decided case law. The Law Society of South
Africa recommends that this amendment be corrected or removed to allow this to
be dealt with in terms of the Interpretation Act.
The
Law Society of South Africa submits that the provision should be made in the
accompanying Regulations to clearly define a fairer point in time or allow a
window for person’s applications that are still to be submitted and decided in
terms of the requirements of the Immigration Amendment Act, prior to any
amendment. This is because the recruitment process can take months to put in
place before the employers and an applicant are ready to submit a complete
application to the Department of Home Affairs. Examples in this regard include:
2. Submission made by an
individual
2.1 Timothy Bassie Maile
Timothy
Bassie Maile argues that South African measures to control or govern influx
immigration are not properly enforced. He thus recommends the following
measures:
Timothy
Bassie Maile further proposes that structures, such as South African National
Civics Organisation (SANCO) and South African Refugee Association (SARA),
should work jointly with the United Nations and regenerate old city buildings.
These should be used to provide accommodation to the immigrants.