IMMIGRATION BILL: PUBLIC HEARINGS
Black Sash Submission on the Draft Immigration Bill
April 2002
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The Black Sash is a human rights-based non-governmental organization that seeks to provides access to justice for poor and vulnerable people through our advice offices, as part of our over-arching commitment to protecting the rights enshrined in the Constitution of our land.
The Black Sash welcomes the call by the Portfolio Committee for Home Affairs for public comment on the latest draft of the Immigration Bill, and we trust that the new Bill will shortly be finalized in a version compatible with the rights enshrined in our Constitution and Bill of Rights, taking into account the issues raised in the various submissions made to this Committee. We accordingly welcome the stated commitment to a "..human-rights based legal framework to deal with matters relating to foreigners within the Republic" contained in the explanatory Memorandum published with the Bill.
The comments of the Black Sash on the Bill at this stage will be limited to the obligations of South Africa which informs the rights of refugees and asylum seekers and the effect of the Bill in its current draft form on these rights. The paralegal-caseworkers in the Black Sash advice offices regularly assist refugees and asylum seekers to realize their rights, and our submission is informed by their work and our understanding of the Constitution.
The Constitution, and International Law
Provision is made in Sections 231 and 233 of the Constitution for the recognition and application of International agreements and law, and Section 233 expressly states that in interpreting national legislation, courts are to prefer interpretations that are consistent with provisions of international law over any alternative.
South Africa acceded to the following International Covenants on the stated dates:
The above instruments guarantee certain minimum rights to refugees and asylum seekers who enter the territories of states members. In addition to these international instruments, and largely to give flesh to the rights contained in these instruments, South Africa promulgated national legislation, the Refugees Act., which came into effect on 1 April 2000. Prior to the coming into effect of the above Act, refugees and asylum seekers were dealt with in accordance with the provisions of the Aliens Control Act.
Notwithstanding the accession by South Africa to the international instruments on the rights of refugees and asylum seekers set out above, the daily reality of such persons on South Africa is not always easy. Many people face daily instances of aggression rooted in deep xenophobia from South Africans on various fronts. In addition to demonstrations of suspicion and aggression by South African citizens in social interactions, SAPS have demonstrated an over- zealous eagerness to arrest and deport people suspected of being illegal aliens.
Our Black Sash Gauteng advice office is aware of instances where police have arrested people who were queuing outside of the Department of Home Affairs to make application for asylum-seekers permits, on the basis that they were not carrying the necessary documentation.
The Black Sash is aware that there is a balance required between protecting South Africa from a swell of illegal aliens and economic refugees, and respecting the rights of asylum seekers and refugees, but the above instances are single examples of an attitude by officials in South Africa that seeks to thwart the spirit of the Refugees Act and our international obligations through over-zealous enforcement of the letter of the law. Another example of the effect of such an attitude is set out in the findings of the Human Rights Committee published in their Quarterly Review that enforcement officers (in this case officials of the Department of Home Affairs), seeking to arrest illegal aliens, often arrest people who are awaiting asylum seekers permits but have been turned away by the Department and told to return on another day; without the necessary permits these people are sitting ducks to enforcers of the law given the extraordinary powers to arrest and deport that are provided for in the legislation.
The focus of the proposed Immigration Bill is the broad issue of immigration of persons both permanent and temporary to South Africa. We are concerned that certain of the provisions do not dove-tail smoothly enough with the provisions of the Refugees Act, and in this submission we wish both to bring these to the attention of the Portfolio Committee to address these prior to the promulgation of the legislation, and we also seek overt confirmation of certain rights set out in the Refugees Act and its regulations, where potentially conflicting provisions contained in the Immigration Bill could be interpreted as overriding the former.
It is essential for Legislators to keep in mind that most of the Rights enshrined in the Bill of Rights in our Constitution are extended to people who will be considered as "foreign" under the Immigration Bill, given that most of the rights are bestowed on "Everyone". Without detracting from the application of all such applicable rights, in examining the Immigration Bill it is of special significance for us to consider the following rights:
We are encouraged by the stated commitment set out in the Memorandum, cited above, to the development of a human-rights based framework for the administration of immigration law, and accordingly use this opportunity to examine specific provisions of the proposed Bill that we believe need to be amended to reflect more successfully the rights and guarantees of refugees and asylum seekers as currently provided for by the State.
The Immigration Bill
Asylum seekers - Addition of Definition, and amendment of Section 18
According to the provisions of section 3 of the proposed Bill, someone who is a foreigner (which is defined as neither a citizen nor a permanent resident) may only enter and stay in South Africa if he or she is in possession of a temporary residence permit.
Sections 3 to 19 of the Bill set out the 16 types of temporary residence permits, including a permit type entitled "Asylum" in Section 18. The section states:
"The Service may issue an asylum permit to a refugee subject to the Refugee Act, 1998, and any prescribed term and condition."
The admission of asylum seekers is an extremely sensitive issue internationally. To obstruct asylum seekers’ entry to a country, including through demanding a visa prior to entry, or fining the carriers that transport asylum seekers contravenes Articles 31 and 33 of the UN Convention on Refugees, but is still practiced by many countries. The final Immigration Act must leave no doubt in the minds of immigration on Immigration officials greeting asylum seekers at ports of entry about the nature and extent of their duties and obligations to ensure that the rights of asylum seekers are fully observed and respected, specifically where asylum seekers arrive without appropriate documentation.
The Immigration Bill does not define Refugees per se, but refers to the definition in the Refugees Act, which contains the following definition of Refugee, namely
"any person who has been granted asylum in terms of this Act".
Before one is granted asylum however it is necessary to have the opportunity to apply for asylum in terms of the Refugees Act. The Immigration Bill contains no definition of "asylum seeker". There accordingly appears to be no form of permit provided for to enable people who arrive to seek asylum, to be allowed into the country to carry out this purpose.
Recommendation 1:
We submit that this is will only lead to confusion and perhaps the denial of persons rights and accordingly we propose that the following definition be inserted:
"Asylum seeker: a person who is seeking recognition as a refugee in the Republic in terms of the Refugees Act".
In addition to this, it will be necessary to amend Section 18 to allow for the provision of a permit to an asylum seeker who will then require the processing of his or her application for asylum in terms of the provisions of the Refugees Act. Immigration officials at ports of entry should not have the discretion to act as gatekeepers to potential asylum seekers for many reasons, including that they usually for reasons of flight and necessity are not able to produce at the port of entry standard documents to prove a prima facie case to the immigration officer. Accordingly it must be mandatory for officials to allow entry and issue permits to people who state their wish to apply for asylum, in terms of Regulation 2(2) of the Refugees Act.
Recommendation 2:
We propose that Section 18 should accordingly be amended to read as follows:
"An appropriate permit must be issued in terms of Regulation 2(2) to the Refugees Act to anyone entering the country at a port of entry who states that it is his or her intention to apply for asylum. This permit must be issued subject to the Refugees Act, 1998 and the Regulations thereto".
This provision would then enable asylum seekers to enter the country and apply for asylum in terms of Chapter 3 of the Refugees Act via a Refugee Reception Office.
Definition of Passport
Section 31 of the Refugees Act provides that refugees have a right to apply for a travel document, and regulation 15(e) provides that a refugee is entitled to "apply for and receive a UN Convention Travel Document (UNCTD) issued by the government of South Africa"
Recommendation 3:
For the sake of completeness, we accordingly believe that the proposed definition of "passport" contained in the Immigration Bill should include direct reference to this form of travel document by the following amendment to the definition set out in section 1[xxvii][c]:
"including any travel document issued to a refugee in terms of any international convention to which South Africa has acceded"
after "who is not a citizen;" and before "and". This will further mean that a Refugee with such a travel document will be able to comply with the proposed provisions of Section 2(4).
Definition of Status
Recommendation 4:
To clarify the status of both asylum seekers in possession of the proposed section 18 permit as set out by the Black Sash earlier in this submission, as well as the status of asylum seekers and refugees as defined and regulated in the Refugees Act, the Black Sash calls for the definition of "status" to be amended by the addition of the following sentence at the end of the proposed definition:
"In addition to the Asylum Temporary Residence permit provided for in Section 18 of this Act, ‘Status’ shall also include both the Asylum Seekers Permit provided for in Section 22 of the Refugees Act and the recognition of Refugee Status provided for in Section 23(3)(a) of the Refugees Act and the provisions of the regulations prescribed in terms thereof".
This shall then allow for the recognition of a refugee and an asylum seeker in terms of Regulation 3(3) of the Refugees Act, to work or study for the purposes of Sections 41 and 42 of the proposed Immigration Bill.
Amendment of Section 29(1)(l)
Recommendation 5:
In order to confirm the legislative protection for asylum seekers, the Black Sash calls for this subsection to be amended by the deletion of the current subsection and the substitution therefore of the following:
"administer the protection of asylum seekers and refugees and related legislation".
Amendment of Section 29(2)(a)
In terms of Section 27(f) of the Refugees Act, a Refugee is entitled to seek employment. In addition, while an asylum seeker is generally not entitled to seek employment while his or her asylum application is being processed, where the state takes longer than 180 days to process the application, an asylum seekers is entitled to challenge this prohibition in terms of Regulation 3(3) to the Refugees Act.
Section 29(2)(a) must accordingly be amended to reflect these categories of foreigners who are entitled to work, to avoid any conflict between the provisions of the respective acts.
Recommendation 6:
The Black Sash calls for this section to be amended by the deletion of the current proposed provision and the substitution therefore of the following:
"(a) inspect workplaces to ensure that no illegal foreigner is employed and that foreigners, if any, are employed in the job description and at the terms and conditions set out in their temporary residence permit, and that the relevant fees, if any, are paid. For the purposes of this section, all refugees and asylum seekers who have been exempted from the prohibition against working in terms of Regulation 3(3) of the Refugees Act are excluded from the definition of ‘foreigner’."
Comments on proposed amendments to the Refugees Act.
In addition to the above, we make the following submissions with regard to proposed amendments to the Refugees Act provided for in Schedule 3 of the Immigration Bill, and we also take the opportunity of making certain recommendations for further amendments.
1. Amendment of definitions
"Immigration Act"
Recommendation 7:
There should be a definition for Immigration Act included in the Refugees Act.
"Rules"
This definition refers to the Rules made by the Appeal Board under Section 14(2). If the section is to be deleted and the Board replaced by the Court, then this should be amended to read:
Recommendation 8:
"‘rules’ means the rules made by the Immigration Court in terms of the Immigration Act".
"Spouse"
The definition contained in the Immigration Bill of spouse is a broad definition and makes allowance for certain same sex partnerships which is in keeping with the guarantee of equality contained in section 9 of the Constitution. We submit that this definition should for reasons of synchronicity and constitutionality be included in the Refugees Act.
Recommendation 9:
The definition of "spouse" contained in the Immigration Bill should be inserted in the Refugees Act, and the definition included in the Regulations should be deleted.
2. Sections 15 and 16
Recommendation 10:
To tidy up the amendment, the word "both" should be deleted.
3. Substitution of "Aliens Control Act" with "Immigration Act"
Various references to the provisions of the Aliens Control Act survive in the Refugees Act and its regulations, which should be considered.
Recommendation 11:
Reference to the "Aliens Control Act" in the following situations should be deleted and replaced with the words "Immigration Act""
4. Substitution of the term "Court" for "Appeal Board"
Recommendation 12:
Where reference is made to "Appeal Board" in the following instances, it should be deleted and replaced by "Court":
5. Regulation 2(2)
Recommendation 13:
Regulation 2(2) should be amended to read:
"Any person who wishes to enter the Republic in terms of Section 18 of the Immigration Act, or any person who has entered the Republic in violation of the Immigration Act [Aliens Control Act] and has not submitted an application pursuant to sub-regulation 2(1), but indicates an intention to apply for asylum, shall be issued with an appropriate permit valid for 14 days within which they should approach a Refugee Reception Office to complete an asylum application."
The Black Sash
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