Presented to the South African Department of Home Affairs, May 2000
PLEASE NOTE: Readers wanting to reproduce and
reference
this article should contact SAMP
for permission
Back to WHITE PAPER COMMENTS or HOME
The white paper on international migration, published by the Department of Home Affairs (DHA) at the end of March 1999, proposes a system of immigration enforcement which relies on South African citizens, government departments, and service providers for its success. However, given the emphasis and orientation of the white paper, it is unlikely that it will achieve its stated objective of stopping illegal migration. Instead, it will increase hostility towards foreigners to dangerous levels.
There are two key elements contained in the proposals of the white paper. First is the recognition that immigration policy and law must facilitate the movement of people into and out of the country, provided they are not prohibited from doing so for any reason. The second element, which to some extent contradicts the first, is the proposal that the enforcement of immigration law be shifted from border control to community level (i.e. internal enforcement). This means that enforcement will take the form of inspections in communities, workplaces, educational institutions and other places where migrants and immigrants may apply for services. The enforcement strategy relies heavily on the participation and co-operation of community organisations, employers and the other branches and spheres of government.
It appears as if the white paper tries to strike a balance between the opposite extremes of the migration debate- support for a liberal migration regime on the one hand and the call for stricter enforcement on the other. Certainly, the proposals make a significant contribution to streamlining the process of entry and are to be welcomed. However, contrary to the green paper on international migration which proposed that international migration be refocused as an issue of growth and development, the white paper continues to be preoccupied with control and enforcement.
Particularly worrying is the proposal that the support of South African citizens, government departments and institutions be enlisted in the detection, apprehension and removal of "illegal aliens". It is specifically the suggestion that suspected "illegals" should be reported to Immigration Services that can have some grave consequences. In the context of high levels of xenophobia and intolerance towards foreigners, it is likely that the actions of South Africans will not be limited to merely reporting. There is a distinct danger that South Africans will take the law into their own hands and even consider it their patriotic duty to take action against "illegal aliens" (assuming they can distinguish between various categories of foreigners in the country).
The longer term impact of this proposed enforcement strategy must also be considered. First is the fact that those involved in the implementation of this strategy will have to make assumptions about the person(s) that they suspect of being in the country illegally. More often than not, these assumptions will be based on skin colour, language or accent, dress and manner of behaviour. In short, the assumptions will be racially-biased and reinforce ethnic stereotypes and racial discrimination. The victims of this type of discrimination and consequent harassment and abuse will, however, not be limited to foreigners, but will include South Africans as well.
Secondly, the white paper proposes that local community organisations and particularly the local police should be involved in this level of enforcement. As matters stand, the relationship between the police and the communities they protect (including foreigners) is already fragile. By involving the police and even other government agencies in immigration enforcement, this is likely to fracture relationships between immigrants and migrants, citizens and the local police even further. Migrants are already vulnerable and it is foreseeable that they will not feel inspired to report incidents of violence or abuse against them to the very people that are sometimes responsible for it. This in turn will compromise the ability of the police to perform their function- to serve and protect- effectively.
The white paper also calls for collaboration between Immigration Services and labour institutions in rooting out undocumented workers. Again, this type of collaboration sounds fine in principle, but practically, it can be used as a threat against migrants particularly in sectors such as agriculture and construction where they are more vulnerable. Anecdotal evidence suggests that there are already incidents in which unscrupulous employers use existing immigration law to inhibit foreign workers from speaking out against low wages and exploitative working conditions. Again, this will not be restricted to undocumented workers, but legal foreign workers will be caught in the dragnet as well.
The proposals of the white paper will effectively result in a "witch-hunt" directed against foreigners. In this regard, the proposed "inspections" at schools, workplaces and communities is nothing more than a polite euphemism for raids to be conducted in places where there may be a concentration of non-citizens (documented or undocumented). The proposed enforcement strategy leaves no doubt in the mind that "…it will cause illegal aliens to operate in a hostile environment in which it becomes increasingly difficult for them to find employment opportunities, receive public services or conduct a regular life."
The orientation of the white paper is based squarely on the assumption that we are "plagued" by an "illegal alien" problem and that, therefore, resources must be directed towards detecting, apprehending and deporting them. The white paper seems to ignore the point first mooted in the green paper and which is implicit in the more liberal strategy contained in parts of the white paper-- if you facilitate entry for certain categories of migrants, you reduce the reasons for and consequently the incidents of undocumented migration.
In essence, the mentality of control and expulsion remains a predominant feature of the white paper and this can have very unfortunate consequences. It is apparent that the emphasis on detection, apprehension and removal will not do much more than driving undocumented migration even further underground. The white paper recognises that large-scale deportations do not contribute to solving the undocumented migration problem (the revolving-door migration phenomenon), yet, this is precisely what it intends to do, this time with the help of South African citizens, government departments and service providers.
Absent from the white paper is a system of penalties (other than deportation) that could effectively be imposed upon persons and institutions violating immigration law. Thus, instead of control and enforcement as proposed in the white paper, the goal should be to achieve a system of voluntary compliance with immigration law.
International migration in South Africa has been taking place for a long time. It was the bedrock of the mining industry in International migration in South Africa has been taking place for a particular and constituted their primary source of cheap labour. Big business and the apartheid government actively recruited workers from SADC countries to work in the mines. Deliberate policies were embarked on to induce migrant workers to leave their countries to work in South Africa particularly in the mining, construction and agricultural sectors.
Today migration issues are still governed by archaic pieces of legislation namely, the Aliens Control Amendment Act and the Bi-Lateral Labour Treaties between governments in the region. Hence, Cosatu supports the initiative by the Department of Home Affairs to put in place a new policy on International Migration.
The present legislation, focussing on policing and strict border controls, only served as a revolving door where government spent large amounts of money deporting illegal immigrants, who always return to the country. This happened in the context of increasing economic integration in the region, the liberalisation of trade, increasing investment opportunities, wars and political instability in other African countries, poverty and economic inequalities between South Africa and other countries, particularly in Southern Africa.
This legislation does not reflect the present democratic order and the transformation process that has been unfolding since the 1994 democratic breakthrough. A democratic Constitution has been put in place to guide policy and legislation for the realisation of people’s rights to equality and freedom.
We agree with the view that the utilisation of scarce resources for policing our borders to reduce the flow of illegal immigrants into the country is not a solution. These resources can be better utilised on a more comprehensive approach to migration including the reconstruction and development of the region. Clearly heavy reliance on the success of border control has not proven successful even in countries better equipped with resources, for example, the United States.
The White Paper raises a number of important issues. However, Cosatu would like to point out major issues of concern, as well as the problematic way in which this document has been drafted. The structure and language of this White paper makes it difficult to follow. The White Paper needs to be drafted in a more comprehensible way.
The White paper proposes the involvement of the social partners at Nedlac in various mechanisms affecting migration. However, the White Paper was not tabled at Nedlac. We propose that it be referred to Nedlac for further discussion.
While Cosatu’s comments on the Green Paper have in limited respects found expression in the White Paper, some of the positive elements of the Green Paper have been reversed and a number of substantive proposals made by Cosatu and other parties have not been taken on board.
Since the White Paper largely deals with labour market legislation and Nedlac, we propose that it be referred to Nedlac for further discussions and inputs.
Are the specific needs and significance of the academic sector at South African institutions of education and training addressed and included in the draft White Paper?
The response by IEASA’s members to this question was no, not really.nnThe White Paper takes limited consideration of the needs and significance of the academic sector. There are various areas that could accommodate aspects of the academic sector[1], but none of them adequately cover the needs of education and training institutions. To this end the University of Cape Town and other members of IEASA advocates the inclusion of an additional Criteria for Admission in the draft White Paper.
There would be three main visa categories addressed under this section:
1.
Student Permit
2. International Academic
Visitor Permit
3. Academic Work Permit
In a separate submission, the University of Cape Town, together with the support of other IEASA members, will outline their vision for this extra, recognised separate sector.
The White Paper proposes to strengthen the administrative and enforcement capacities of the Immigration Service by creating new enforcement structures and mandatory civic duties. Compelling this line of extraordinary methods (see par. 4.1), it is reasoned that the department of Home Affairs suffers from a lack of resources to deal effectively with the magnitude of the illegal immigration problem. Therefore, the White Paper asks of South Africans their "daily small contribution" (see par. 4.1).
We question whether the extraordinary methods proposed correctly facilitate the Department's endeavour to create an atmosphere that is unattractive for present and future illegal immigration to the extent that illegal immigrants choose to voluntary repatriate (par. 1). We also question whether the extraordinary methods will release resources of the Department of Home Affairs to:
The White Paper proposals include the establishment of:
Further, the White Paper proposes:
In creating an atmosphere that is hostile to illegal immigrants, the White Paper asks compliance from educators and service deliverers. South Africa suffers from increasing levels of xenophobia at present. Identifying illegal immigrants depends on a person's skill to verifying the existence or authenticity of documents. These skills must be taught. The White Paper is silent on who will teach these skills in order to hold educators and employers accountable.
Implementing the White Paper's proposals on identifying and reporting illegal foreigners, an education campaign focussed at the police, immigration officials, employers, educators, communities and state organs is suggested. However, the White Paper is silent on who will perform the educating duties and whether the speculative newly freed resources (time and finance) will not be needed for this task.
Further, the White Paper proposes harsh sanctions for employers that employ illegal immigrants, including jail sentences. The South African Law Commission is presently busy with Project 82, Discussion Paper 91, 'Sentencing (A New Sentencing Framework)'. The Paper investigates shortcomings of the present South African sentencing system. Issues that feature in the paper include:
Is the Department of Home Affairs aware of this process?
Jail sentences for employers may not be appropriate in the light of present overcrowding of jails and the apparent widespread employment of illegal foreigners. In this context we think it is apt to prescribe only fines and ensure that the charged employer is presumed innocent [section 35(3) of the Constitution].
The White Paper also proposes private detention facilities for illegal immigrants, probably similar to the Lindela Repatriation Centre near Krugersdorp. It is said that such a scheme will facilitate monitoring of the conditions of detention by government. We submit that the task of monitoring private detention facilities falls within the mandate of the South African Human Rights Commission. The White Paper must include their role as a constitutional body protecting human rights.
Finally, the sunset clause (par. 4.1) seems meaningless. A culture of reporting will be entrenched after ten years even if the proposals to verify and report identity and nationality lapses automatically. We suggest that the sunset clause be removed and the requirements of reporting on one's neighbours as well. As with the Aliens Control Act, we feel that the Director-General of Home Affairs must request this information (section 33 of the Aliens Control Act).
[1] For example: under “other classes of temporary permits” Corporate Work Permits, People with exceptional skills and/or extraordinary qualifications, student permits and ‘normal’ work permits with the contribution to the National Training fund.
Back to WHITE PAPER COMMENTS or HOME