Immigration Amendment Bill [B32-2010]: public hearings (day 3)

Edward Nathan Sonnenbergs submission
Ms Zahida Ebrahim, Senior Associate: ENS, said that as provided in the Bill, there was concern that business permits would only be issued for businesses prescribed to be in the ‘national interest’. Even if the list of businesses regarded to represent the ‘national interest’ comprised of a defined list of sectors, it was likely to stifle economic growth from foreign direct investment.  The deletion of the Director General of Home Affairs and Department of Trade and Industry’s ability to reduce or waive prescribed capital requirements was likely to impact negatively, particularly as no provision was made for low capital, labour-intensive businesses, or establishment of businesses in sectors which government wished to promote, where capital requirements were not met.

The Bill would combine the Quota Work Permit and Exceptional Skills work permit categories under the Critical Skills work permit category, which would effectively do away with the Exceptional Skills category. ENS submitted that this would create a challenge as it would prescribe a list of critical skills which may not adequately provide for applications by talented individuals in various fields, including, for example, the arts, entertainment and sport.  This would pose a significant challenge to “corporates” where the sector was not recognised, but skills were in short supply. The Bill proposed that anyone who had overstayed their visa a prescribed number of times would automatically become an undesirable person and therefore ineligible for a permit, visa, admission to the Republic or permanent residence.  This was particularly challenging if one considered the number of overstays currently caused by the Department’s own inability to renew visas timeously. ENS proposed that any permit holder whose application was pending for more than three months at the time of expiration of their exiting permit be granted an automatic extension of their permit until such time that their application was adjudicated.  This would also resolve the prevailing challenge to industry, where key employees were rendered unable to work due to the Department’s failure to finalise their applications timeously.

ENS submitted that a strong need existed to introduce an all-encompassing provision under which applications could be made to the Minister, the Director General or alternatively the Department, in respect of special circumstances which do not fall directly within the ambit of the Immigration Act.

Discussion
Mr M Mnqasela (DA) thanked the ENS for its submission. He commented that the issues continually raised in the hearings were of great interest to the Committee and the questions which the Committee posed were asked in an effort to get a better understanding of the ENS’s concerns prior to the Committee hearing from the Department. He asked for the ENS recommendation on how to assist unaccompanied minors. He sought clarity on the all encompassing provision which the ENS recommended for inclusion in the Bill. It was very interesting to listen to the varying points of view on the Bill.   

Ms Ebrahim replied that the issue of unaccompanied minors should be addressed through the election of an individual, from an appropriate body, who would be entrusted with accompanying the minor back to their country of origin. There was a language barrier with unaccompanied minors which needed to be addressed through the appropriate body. The all encompassing provision for an applicant should be created on humanitarian grounds where special circumstances prevailed. The provision required careful regulation so as to avoid exploitation or abuse.    

Ms A Lovemore (DA) commented that the ENS submission was excellent. She asked whether there was anything in the Bill that made immigration management better. She sought clarity on the ENS’s position on the increase in punitive measures against those who defaulted on immigration laws. She asked whether anyone who had their permit application pending for three months or more should receive an extension to obtain such a permit.

Ms Ebrahim replied that the Bill seemed to legislate to limit permit status changes through its provisions so as to assist the Department in managing the number of such applications and this did nothing to manage immigration, it merely created complications. She was against the increase in punitive measures in certain areas of offence. Fraud needed to be clamped down. There were instances where people overstayed through no fault of their own but rather through the inefficiency of the Department and the punitive measures should recognise those extenuating circumstances.  People who had their applications pending should be granted an extension of three months as opposed to 30 days.     

Adv A Gaum (ANC) asked whether some increase in punitive measures were not justified.

Ms Ebrahim responded that some punitive increases were indeed justified but the increases had to be reasonable and cognizant of capacity limitations.

Forum of Immigration Practitioners of South Africa Submission
Mr Leon Isaacson, Chairperson: FIPSA, and led the organisation’s delegation. Mr Gershon Mosiane, Gauteng Representative: FIPSA presented on the right of representation. One of the changes in the Bill was that Section 46 of the Immigration Act, which defined which professions may legally assist applicants – namely, registered practitioners, advocates and attorneys – would be repealed.  This would have serious consequences as the applicant’s right to representation in immigration matters – a right entrenched in the Constitution – would be removed. The related advisory professions would also lose their recognition and right to do business in this field, and jobs would be lost in the economy. The repeal of Section 46 would result in an unregulated industry in which anyone would be able to advise applicants, causing further problems in a sector which needed increased regulation.

Mr Mohd Shana, a member of FIPSA presented on the role that immigration practitioners played with  personal applications. The Bill also required that all permit applications should be submitted in person at a Home Affairs office or an embassy overseas, although couriered applications had been acceptable in the past.  This was not an insurmountable problem where verification of documents and identities may be required, but this did not require that practitioners be excluded where they held legal power of attorney to represent the applicant.

Ms Julia Willand, Deputy Chairperson, presented on the history and role of immigration practitioners with respect to the changing of permit status. The Bill sought to prescribe the categories for which business visas may be issued.  Home Affairs from time to time would have to publish regulations defining sectors of the economy which were “in the national interest”.  This would require proper and thorough research with regular updates to these lists. This went against international best practice which allowed individuals above a certain investment threshold to invest in a sector of their own choice, thereby encouraging entrepreneurs with their own capital to invest and create jobs.

The Bill proposed to take away the option of applying for a change of permit status whilst in the country and this was a serious hindrance that lacked reason. FIPSA submitted that the Bill would have negative effects on the South African economy and there needed to be proper consultation on the Bill which had not happened leading up to the drafting of the Bill. Ultimately the Bill would undermine the oversight role of Parliament as it would be dependent on regulations which were not open for assessment for validity by Parliament. The Bill did not go far enough in provisions for appeals should a foreign national feel aggrieved about a decision taken by the Department. 

Discussion
The Chairperson asked how Parliament’s oversight role would be undermined as mentioned in the FIPSA submission. 

Mr Isaacson replied that the role of Parliament and its possible undermining through implementation of the Bill had been well canvassed by the Law Society of South Africa in the previous day’s hearings. The use of regulations to legislate would be problematic in that the intentions of the legislature and its controls may not be evident in the regulations which were formulated by the Department. The Bill was a skeleton of a body which would be made up of regulations.

Adv Gaum asked whether there were other countries in the world that had similar provisions to Section 46 of the Immigration Act which made allowance for immigration practitioners. In the view of FIPSA, what was the Department’s motivation for proposing to repeal Section 46 of the Act? He asked if FIPSA was opposed to the restriction on the amount needed to invest in the country to gain a business visa. He asked about the constitutional issues relevant to the Department not consulting civil society prior to drafting the Bill. How would the repeal of Section 46 be unconstitutional?

Mr Mosiane replied that the only reason for repealing Section 46 was in order to prevent the abuse of this section by fraudulent immigration practitioners. If the system was unregulated through the repeal of Section 46, then the purpose of the repeal would be defeated in that the number of fraudulent practitioners may go up. The repeal would create more havoc than good.

Mr Isaacson responded that FIPSA had done some research and contacted a sample of 140 embassies which they dealt with and the view was that most countries allowed for immigration practitioners. This was the case in most European Union countries and other countries. There was no country, in FIPSA’s research, that did not allow immigration practitioners to operate. There was no motivation for the repeal of Section 46 by the Department other than for the Department being against corruption. However if the Department staff followed the correct procedures there would be no room for corruption. On the thresholds for business visas, FIPSA was against the provision because it would have a negative effect on small businesses.

Ms Willand said that the Department of Trade and Industry should be properly canvassed and included on the matter of the threshold provision.    

Mr Mnqasela asked FIPSA what sort of consultation should have been taken by the Department leading up to the drafting of the Bill. In what way should Section 46 be shaped?   

Mr Isaacson replied that the lack of consultation was of concern. There had been no indication from the Department that it would seek to implement such a Bill in previous meetings with it. There had been no consultation with civil society prior to the Bill’s introduction. If there had been an issue with illegal immigration practitioners then the Department should have addressed the industry and given the opportunity to address the issues. If Section 46 were repealed, there would be an increase in corruption.

Mr Mosiane replied that FIPSA wanted the section to be better regulated rather than repealed to prevent fraud. But if the section was repealed then it should be replaced by another section which proposed stronger regulation of the industry rather than its arbitrary scrapping. 

Ms M Maduna-Peterson (ANC) asked what section of the Bill of Rights guaranteed the right of representation.  

Mr Mosiane replied that the right to representation was not specifically addressed in the Constitution, however in Section 195(1) of the Constitution certain obligations were placed on government to acknowledge that people had the right to be represented, and it was a fact which had been accepted by the Department of Home Affairs itself. Section 195 read in conjunction with Section 33 made it implicitly clear that the right of representation was a constitutionally guaranteed right.   
 
Adv Gaum asked what section of the Constitution made it unconstitutional for the Department to draft legislation without consulting civil society first.

Mr Mosiane responded that there were procedures and guidelines set out which had not been followed by the Department. The proposed repeal of Section 46 of the Bill would take away the right of immigration practitioners to make a living and that was unconstitutional. There should have been consultation on that point if not any other.

Adv Gaum disagreed with FIPSA’s view on the matter. The repeal of Section 46 could only be approved or disapproved by Parliament.

Mr Mnqasela said that he believed in an open society which provided opportunity for all and he would never speak as Adv Gaum had spoken. The public hearings could not be adequately viewed as being proper consultation. The issue of consultation had been consistently raised without specific reference to sections in the Constitution.

Mr J McGluwa (ID) said that the public hearings were part of the consultation phase of the legislative process and the public representations made would be taken on prior to the Bill being altered or accepted.

Mr Isaacson said that FIPSA had consulted attorneys and would be happy to provide the recommendations of those attorneys to the Committee. There was an expectation from citizens of the country that when far reaching legislation was being introduced there would be proper consultation with affected stakeholders.

The Chairperson thanked FIPSA and ENS for their submissions.
 
The meeting was adjourned.