PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA

INFORMATION SERVICES SECTION: RESEARCH UNIT

SUMMARY OF SUBMISSIONS ON THE IMMIGRATION AMENDMENT BILL (B28 – 2006)

23 October 2006

 

1.         Introduction

 

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 Africa) and one from an individual. Submissions concentrate, among others, on amendments that particularly relate to the human resources aspects, authorisation of intra-company transfers, authorisation to work on visitor permit for 3 years and the issues of permanent residence.    

 

1.         Submissions made by individuals

 

1.1        Submissions made by organisations

 

1.1.1     PricewaterhouseCoopers

 

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.

 

Authorisation to work on a visitor permit for a period of up to 3 years

 

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 South Africa for a period of 3 years whilst in possession of a visitor permit.

 

Authorisation to work on a visitor permit for foreign spouses of work permit holder

 

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 South Africa’s ability to attract and retain skilled foreign workers.

 

PricewaterhouseCoopers requests confirmation pertaining to the ability of spouses to work in South Africa on a visitor permit, as this was not addressed by the Minister during her presentation on the draft of the Immigration Amendment Bill.

 

Section 19(5) amendment: Inter-company transfer category

 

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.

 

Amendment of section 20 – retired category

 

PriceWaterHouseCoopers welcomes this amendment.

 

Amendment of 27 – permanent residence quotas

 

PriceWaterHouseCoopers awaits the introduction of the revised quotas.

 

1.1.2     Business Unit South Africa

 

Business Unit South Africa puts forward the following comments:

 

Definitions

 

  • The definition of ‘affiliate’ – the definition is accepted.
  • The definition of ‘branch’ – the definition is accepted.
  • The definition of ‘depart or departure’ which will mean ‘to another country’ and will exclude yachts and ships without the intention to debark in another country, is an acceptable definition.
  • The inclusion of ‘subsidiary’ is supported.

 

Section 10

 

It is corrective to include cross-border and transit permits.

 

Section 11

 

Business Unit South Africa queries the reason for which the discretion of the Director-General is limited to a renewal period, which may not exceed 3 months. There are many circumstances in which persons, especially those who conduct work and are beneficial to the country should be allowed to stay longer for particular purposes. These include businessmen and company directors, writers and musicians who visit the country purely for short-term work purposes. Business Unit South Africa thus proposes that period should be extended to at least 6 months.

 

Section 15

 

Business Unit South Africa supports this section. However, on the level of contributions, which are not amended in the Bill, Business Unit South Africa raises the concern that for years it has argued that the required contributions are excessive and this may discourage foreigners from establishing business in the country. Their resources lead to the creation of job opportunities and economic development. Business Unit South Africa requests this view to be considered.

 

Section 19

 

Business Unit South Africa welcomes the extension of intra-company work permit to 5 years. However, it requests that serious attention be given to ameliorating the effects of subsection 6 by not prescribing onerous requirements under the permit to limit such deployment to a particular branch, subsidiary or affiliate.

 

Section 20

 

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.

 

Section 27

 

Business Unit South Africa supports the amendment in section 27 as it helps to liberalise and fast track the entry of needed and highly desirable skills and allows for a simplified form of permanent residence permit for such persons. This is beneficial but it suffers from the fact that the professional and occupational classes have not been included.

 

Business Unit South Africa supports section 27 (c). However, what it means for a financial or capital contribution to be ‘still invested’ is questionable in the context of a trading company repaying loans, paying dividends and reorganising its affairs according to normal financial pressures.

 

Section 28

 

 Business Unit South Africa feels the inclusion of offences such as ‘bestiality’ is nonsensical and atavistic. It does not support the deletion of the previous requirements leading to the effect that permanent residence may be forgone upon a single conviction of one of the less heinous offences. These amendments according to Business Unit South Africa must be withdrawn and redeveloped. Business Unit South Africa considers this section as unconstitutional.

 

Transitional provisions

 

Business Unit South Africa supports transitional requirements.

 

 

1.1.3          The Law Society of South Africa

 

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.

 

Section 27

 

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:

 

  • Provision should be made for the reinstatement or introduction of an expedited process for persons qualifying for permanent residence in terms of section 26(a) and section 27(b) or by virtue of falling within the quotas.
  • Persons falling outside of the quotas, that is, outside section 26(a) or section 27(b) should be dealt with in the ordinary course but they should not be reduced to not qualifying for at least 5 years.

 

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.

 

Section 28

 

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 Constitutional Court in which this status has been equated with citizenship according to the Constitution. 

 

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.

 

Section 10

 

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:

 

  • The delays experienced in getting clearance from South African Qualifications Authority (SAQA), which currently does not take less that 3 months.
  • Police clearances, for example the Canadian authorities advise that clearance can take up to 7 months.
  • Professional registrations, such as registration with the Engineering Council of South Africa can take up to 9 months.
  • Getting proof that one’s children are allowed to leave the country of origin, especially where a couple is divorced, can be onerous if not impossible in developing countries or in cases where the couple have not addressed this issue formally in their divorce proceedings.

 

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:

 

  • All illegal immigrants should be registered.
  • With the help of the United Nations, the registered immigrants must be supplied with a temporary permit that will enable the bearer thereof to undergo the following processes:
    • Criminal record clearance.
    • The permit holder should undergo a medical check-up and immunisation. Thereafter, the immigrant can be given residential accommodation.
    • The permit document should enable the holder to reside in South Africa for 5 years before a citizenship is granted.
    • Legal and illegal immigrants should not be allowed to purchase property before the prescribed 5 years is due.
    • South African citizens should be informed that a penalty would be imposed should they provide accommodation to illegal immigrants.

 

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.