IMMIGRATION BILL: PUBLIC HEARINGS
Home Affairs Portfolio Committee; Social Services Select Committee: Joint Meeting
18 April 2002
Back to Parliamentary Hearings on Immigration Bill or Immigration Policy
Chairperson: Mr DA Mokoena (ANC)
Ms L Jacobus (NCOP, ANC)
Documents handed out:
Joint
submission by Cosatu, Nactu and Fedusa
Draft
submission by Vincent Williams
Proposed
Amendments by Vincent Williams
Presentation by Ivan Lambinon at World Bank Symposium on GATS
obligations (see Appendix 1)
Submission by Centre for Development and Enterprise (see Appendix
2)
SUMMARY
Cosatu, Nactu and Fedusa presented a joint submission to the
Committee highlighting the following areas of concern in the
Bill. Compliance with the existing labour standards and
conditions, including the role of the Department of Labour (DOL),
integrating the Bills provisions on skills, qualifications and
the training fund into the existing skills legislative framework.
They also raised the issue of compulsory deferred pay, the
regulation and issuing of exceptional skills permits; the
regulation of Intra- company transfer permits. The composition
and representation of the Immigratory Advisory Board (IAB), the
making of regulations and compliance with International and
Constitutional human rights obligations were discussed.
He proposed amendments to the specific sections of the Bill. It
is his belief that the draft Bill is fundamentally flawed as it
does not achieve what it sets out to do, other than detect,
apprehend and deport illegal foreigners, or what it would achieve
is not necessarily desirable. Idasa submitted that a better
approach would be to ask the questions: What do we want to
achieve with the immigration bill and how do we structure and
formulate our legislation in order to achieve this? The key
requirement here should be to achieve agreement on the goals and
objectives of immigration, which should not be the detection,
apprehension and deportation illegal foreigners as is currently
the case.
MINUTES
Briefing by Labour
Mr Neil Coleman: Head of the Cosatu Parliamentary Office, Ms
Prakashnee Govender: Cosatu Legal Co-ordinator and Ms Gretchen
Humphries: Fedusa Parliamentary Co-ordinator, made submissions to
the Committee. Mr Coleman said that it was important to draw
attention to today’s historic occasion, as it was the first
time in Parliament that the Trade Union Movement was giving a
joint submission. Nactu had endorsed the submissions but were
unable to attend the meeting.
Mr Coleman averred that it was important that they are united on
the critical issues facing the country. Migration is a sensitive
issue as in South Africa there has been a long history going back
to colonialism, whereby the migration policy used to control the
majority and deny them their fundamental human rights. These
historical patterns should not be reinforced. The long process
from the Green Paper in 1997 to the White Paper and finally to
the Bill, (which is littered with complications) was highlighted
by Mr Coleman. He thereafter turned to Ms Humphries to take the
Committee through this process.
Ms Humphries referred to the document and read out the following
paragraphs to the Committee: paragraph 1: Introduction; paragraph
1.1 Concerns about process; and paragraph 1.2 The Relationship to
the White Paper.
Ms Govender took the Committee through the balance of the
document.
Discussion
Ms van Wyk (UDM) said that concern about the chartered
accountants being required to participate in the approval
procedures for work permit applicants has been raised. While she
could see the logic behind their reasoning, were they comfortable
about the Department of Labour dealing with this added
responsibility, and whether this extra duty been discussed with
them.
Mr Coleman said he does not think it is about the willingness of
the Department to take on this added responsibility but it is
something entrenched in our law. He believed that the Department
could develop the capacity to implement this. He mentioned that
one of the problems with Nedlac was the battle to get a response
from them. They only met on substantive issues, and a response
from them was received only two days ago. The Department of
Labour was not present at one or two meetings, thus the process
was bogged down. It was impossible to get an intelligible
coherent response from government on certain issues.
Ms Jacobus (ANC) said that Clause 12 deals with specialised
skills and qualifications. What did they think about the idea of
prescribed quotas for skills?
Mr Coleman said that there is the broader issue of quotas in
toto and he does not know what happened on the issue of the
quota system in the White Paper. There is a bias in the Bill
around the issue of introduction of skills of foreigners.
Mr Chauke (ANC) said that his point concerned the consultations
with Nedlac, there does not seem to be a good working
relationship between Nedlac and the Department of Home Affairs.
There is a section in the Bill which states which parties have
been consulted. Who had in fact been consulted in the process? He
asked to be informed about the amendments which were proposed
around the Aliens Control Act. Thirdly, could the amendments to
the Aliens Control Act be completed?
Mr Coleman replied that he wished to avoid getting bogged down
with issues concerning Nedlac as the Executive Director of Nedlac
would be making a submission to the Committee next week which
will place on record the process. The Committee has to decide on
the route that it wishes to follow. On the issue of whether
reworking the Aliens Control Act can be completed, he replied
that there are many issues of concern, and the Committee has to
determine how long a period is required. They were concerned that
the time period is inadequate, given the range of difficult
issues that have to be addressed.
Mr Waters (DP) replied that the Aliens Control Act is a law from
the old South Africa. A progressive piece of legislation is
required. He followed up on Ms van Wyk’s question about
handing over functions to chartered accountants and asked if it
would in fact be sensible to hand over this function to them. He
asked if there could be elaboration on Clause 16 (5)(2):
corporate permits, and also how the issue of deferred payment
works. There is a major concern about under-funding in the
Departments and he is concerned about the Department’s
capacity to fulfil these extra functions.
Mr Coleman replied that one of the major campaigns that Labour is
waging is to show that there are restrictive resources to pursue
these programmes. However he averred that the answer is not to
contract out the State’s functions to the private sector.
The capacity of the State to deal with these functions should not
be run down, but there is an enormous problem with training.
On the issue of deferred pay, he said that it is a relic of the
apartheid system and is carried out in Mozambique and Malawi
amongst other countries. There is an agreement with the
government of those countries whereby a certain portion of the
salary is deferred, and can be obtained upon the employee’s
return to his country. In Mozambique hundreds of employees did
not receive their salary, and the National Union of Mine Workers
have come out strongly against this system. The system of
voluntary pay is something that needs to be looked at.
Mr Pretorius (NNP) said that on the previous day Business South
Africa and business in general have criticised and expressed
their reservation on the Bill, and today Labour is expressing
their reservation. Have Labour and Business jointly discussed the
merits of the Bill and tried to find a happy medium to protect
South Africans in general, and promote growth and development?
Ms Mars (IFP) said that corporate permits in toto should
be rejected. She was concerned about how serious one would
consider our skills deficiency in the country. If it is very
serious then should we not find the means to accommodate this
shortage.
Ms Humphries said that both Labour and Business did consult on
various issues. In the Migration Policy Unit of Nedlac, Business
had an opportunity to submit concerns. However there has been no
real negotiations although opportunity was given to reach
agreement on issues. There was no time to sit down and discuss
the concerns raised.
On the issue of shortage of skills, she said that the key concern
is that skills are in fact transferred to the South African
workforce.
Ms Govender replied that within the National Skills Framework
policy the shortage of skills is identified and prioritised. She
pointed out that a Clause 12(5) permit is distinct from a Clause
12(1) permit and this helps to address the shortage of skills.
Mr Skhosana (ANC) said that the progressiveness of the unions
impressed him, in terms of recognising shortage of skills and
taking a certain approach.
Mr Sikakane (ANC) asked what is the feeling of Cosatu with
regards to the issue of permits. He asked if Clause 12 and 16
could be married to obtain better results.
Mr Coleman replied that the issue of corporate permits comes up
repeatedly. The Committee should look at page 15 of the
submission as the issue is straightforward. The relevant issue is
who is responsible for regulating this, and to outsource that to
companies is a recipe for disaster, chaos and other types of
unethical practices. It is the feeling of labour as a whole that
the function should not be outsourced.
Mr Smith (IFP) said that if one looks at the Union’s
submission, they are critical in what they say about attracting
overskilled people. Clause 15 is two–fold, and other than
Clause 14 the basic provision for attracting people is the Clause
12 permit. He averred that it is not a means test. How does
labour view the responsibility to SADC and the responsibility to
our own workers in respect of employment.
Secondly he said that although there are quotas in the Bill, it
lacks an adequate mechanism for consultation as Clause 12(5)
states that quotas are to be determined after consultation. He
commented on page 15 of the submission and the paragraph reading
"no limitation placed on number…" In terms of
Clause 16, the Department can determine the maximum number of
foreigners. Did he misunderstand the statement? With respect to
chartered accountants did the unions adopt a generous view to
outsourcing?
Mr Coleman said that some of the fundamental policy questions are
being revisited again. The critical policy questions were never
settled. The question is "what are you trying to achieve by
migration dispensation?" Deferred pay was agreed to in the
Nedlac process, and that it be reconsidered after the Bill was
passed. This is the wrong way to approach it, and that policy
should be settled so that legislation fits into what is trying to
be achieved. They are trying to take a mature stance and if there
is a need for supplementary document to elaborate on those
issues, they were are prepared to do that.
With regards the question of Clause 12(5) consultation process,
those quotas are limited to certain skills, it does not identify
what those skills are but a reading of the section its intended
to apply to skills that are in short supply in the country .
He said that with regard to economic policy we should adopt a
policy that will best give effect to what the government sets
itself.
Ms Govender said that in response to the emphasis on highly
skilled workers, there is the need to distinguish between direct
and Indirect effect of employment. Under Clause 14 one can
qualify for exceptional skills permit and under Clause 22(b) one
too can qualify for exceptional skills permit. There is no
definition for skills or qualifications.
Prince Zulu (IFP) said that cheap labour standards were
associated with colonialism and apartheid. How satisfied were the
presenters that these cheap labour standards were adequately or
inadequately answered in the Bill? He said that foreign nationals
should not be treated in an inferior manner hence there should be
a balance between foreign nationals and our people in terms of
cheap labour standard practices.
Mr Chauke asked if it correct that we will adopt this piece of
legislation in the absence of a clear policy guide. On the point
of not having enough resources to implement the legislation he
said that we have to fight for the Department’s allocation
of reasonable resources.
Mr Coleman said that the provision on the employment of
foreigners below standards that would be applied to local
employees is a critical provision and the question that arises is
"is it adequately addressed?" He suggested that it can
be improved and the submission indicates that the provision can
be beefed up. There are loopholes in the Bill. He also mentioned
that Business is complaining about penalties placed on them for
the employment of illegals. With regards the issue of reverse
onus, they support strong sanctions.
Mr Coleman said that in response to the last issue he tried to
indicate earlier that the policy question was not settled and the
White paper process was never finished so their preference is
that policy questions be dealt with, and the Bill be founded in
response to that.
Briefing by Vincent Williams
Mr Vincent Williams: Project Manager of SAMP (Southern
African Migration Project), said that the submissions were in two
stages. The first deals with stating what the Bill sets out to
achieve. He does not think that the way in which the Bill is
drafted will achieve those objectives. The second stage of the
submissions deals with redrafting of certain sections in the
Bill.
Mr Williams then proceeded to read out the submissions and then
drew the Committee’s attention to the disclaimer at the top
of the page. The disclaimer said that the amendments are not
necessarily in the form of accepted legal text nor have they been
scrutinised for potential conflict with other applicable laws and
statutes. He said further that he does not assume that the
Committee would accept every single provision in the document.
Discussion
Mr Chikane (ANC) asked what were his recommendations
regarding the cross-border passes issue.
Mr Williams replied that that the Bill does make provision for
the issue of passes or "identity cards" for people who
cross the borders frequently and engage in trade for example.
His second question related to the issuance of corporate and
institutions permits and whether the Department should issue
these permits or the corporate applicant should collect all the
information and forward it to the Department of Home Affairs.
Mr Williams said that it would be more efficient if the
Department issues the permits. He said that there are two
alternates; (a) either the corporate applicant collects all the
information and sends it to the Department or (b) the standard
work permit application process applies where the individual
makes application for his/her permit. He said that should not
complicate the process and allow corporate clients to
‘willy-nilly’ employ any person.
His third question revolved around the appeals procedure in the
Bill and asked for elaboration on this point.
Mr Williams said that because this process can take a long time
to go through the court system there should be the introduction
of a mechanism where the Immigration Board can make a decision.
He agrees that this should not be extended indefinitely therefore
there is the need to see at what point the appeals process stops.
Mr Skhosana (ANC) referred to Clause 37 of the Bill and said that
some people do not have the funds to pay for their deportation,
and what is the position then? With regards to overnight
accommodation proprietors of these facilities need to question
whom it is that they are giving accommodation to.
Mr Williams replied that with regards deportation, the individual
should pay for his deportation but if they do not have the funds
for it they are liable to a further fine or imprisonment. He said
that this second part is problematic. In respect of
accommodation, he said that those establishments must contact the
Department for verification if a person is not able to produce an
identity document. This too he said is a problematic area.
Mr Tolo (ANC) referred to Clause 28, the advisory function of the
Board, and asked if the Minister should chair the Board if the
Board performs an advisory function and what should the position
be if it performs other functions as well. The second question
referred to entering the premises, and Mr Tolo asked what is the
procedure when the entry is denied and whether the wording should
be change to "request to enter".
Mr Williams said that the Minister could chair the Board if the
Board performs an advisory task. If it does more that advise the
Minister on certain issues, the chair should be an independent
person.
In connection with entering the premises, Mr Williams replied
that one must look at the clause dealing with enforcement and
monitoring and it suggests that the Department has to ask to
enter a place before it actually enters the premises. Clause
30(a) gives the Department a licence to walk into the premises
and this contradicts the later part. He said that he does not
think that the Department should be allowed to walk into premises
and begin its inspection. However on the basis of a warrant being
issued the Department can still enter the premises, and if there
is the feeling that information might be hidden, whilst a warrant
is being obtained, the Department may enter the premises.
Mr Grobler (DP) referred to the issues of work permits and
excellent skills and asked Mr Williams to elaborate on that. He
also asked about countries using the point system for allowing
people to enter the country.
Mr Williams replied that there are countries that make use of the
standardised and objective means to see who should be allowed to
enter the country. He said the Canadian as well as Australian
system was looked at but he said that South Africa is in a
different league, therefore those systems would not be
applicable.
The meeting was adjourned.
Appendix 1:
DEPARTMENT OF HOME AFFAIRS
15 April 2002
To. Aubrey Mokoena, MP
Chairman: Portfolio Committee on Home Affairs
P0 Box 15
Parliament
Cape Town 8000
Dear Mr Mokoena
As you know, South Africa's accession to the General Agreement on
Trade in Services has imposed obligations on our system of
migration control, especially in respect of what is referred to
as Mode 4. These obligations are very relevant to the present
debate on the Immigration Bill. I am enclosing a Paper submitted
at the recent WTO Symposium which audits the compliance of the
Immigration Bill with GATS obligations. It is significant that at
present, under the Aliens Control Act, the Department of Trade
and Industry could only fill an "unbound" schedule in
respect of Mode 4 being unable to make any commitment because of
the present legislation and practice.
Yours faithfully
From. Ivan Lambinon
Deputy Director-General
cc. Members of the Portfolio Committee on Home Affairs
JOINT WTO-WORLD BANK SYMPOSIUM ON MOVEMENT OF NATURAL PERSONS
[MODE 4]
UNDER THE GATS
PRESENTATION BY IVAN LAMBINON, DEPUTY DIRECTORGENERAL
MARIO GR ORIANI-AMBROSINI, MINISTERIAL ADVISOR
DEPARTMENT OF HOME AFFAIRS OF THE REPUBLIC OF SOUTH AFRICA
ON "MODE4 TRADE- THE REGULATORS' VIEW"
GENEVA : APRIL 12, 2002
Paragraph 2 [d] of Article 1 of the General Agreement on Trade in
Services [GATS], identifies international trade in the supply of
services through the presence of natural persons in a foreign
county, when both the county of origin and the receiving one are
Members to the Agreement. The extension of the notion of
international trade to include trade in services supplied by
natural persons who cross international boundaries to deliver
such services may bring about a profound revolution in municipal
legislation regulating international migration in most countries.
In many countries the interface between migration control and
broader policy making relating to international interest is
somehow weak. Furthermore, the field of migration control is
often charged with sensitive and difficult undertones which makes
it difficult to adjust policies to a serene assessment of
national interest, least of which to assess national interest
within a broader and long-term global perspective. For this
reason, there is often a gap between the policy fluidity and, I
would say, modernity of the average field of legislative and
policy efforts of many countries and their respective systems of
migration control. Actually, many systems of migration control
presently in force are the product of adjustments made on the
original mould often established in the first part of the 20th
century, and are insensitive to a global dimension of trade which
extends to the movement of people. They were formulated for a
more parochial and slower age.
For this reason, I feel that the South African experience may be
of particular interest as South Africa's new and complete reforms
of its system of migration control may point towards a range of
migration control techniques which may be more responsive to the
needs and aspirations of the 21st century. Prior to
its liberation in April 1994, under the regime of apartheid,
South Africa had operated with a system of migration control
which was suited to a county in international isolation which
emphasised security considerations and the ethnic composition of
its population over any benefit associated with the international
movement of people. For this reason, South Africa was faced with
the need of starting from scratch and had the unique opportunity
to conceptualise a new system of migration control which could
look towards the future.
South Africa presents a mixture of characteristics, as it is
undoubtedly a developing county but with a higher level of
prosperity relative to the rest of its continent, which makes it
a target of migratory influxes, therefore raising the need for
management and control measures which are typical of developed
countries. Furthermore, South Africa finds itself operating under
extreme budgetary restraints and social pressures which do not
allow sufficient resources to be allocated towards migration
control, and, therefore, any of its measures in this field must
rely on and require minimum administrative capacity and be aimed
at maximum simplification, objectivity and transparency in order
to achieve maximum efficiency and effectiveness.
Having to combine these various elements together, South Africa's
Minister of Home Affairs, Prince Mangosuthu Buthelezi, chose the
hard option of developing a system of migration control which
carries a number of unique innovations and reflects a visionary
perspective of a more liberalised regime of international
movement of people. I would like to present a few of such
features because I feel that one of the main purposes of this
symposium should be that of beginning to develop a process which
may identify new techniques on migration control which may
satisfy the concerns, habits and, why not, idiosyncrasies of the
regulators, while fulfilling the obligations of the GATS and
achieving its long term objectives. In so doing, we need to
promote a new culture within each line function of migration
control of Member States. Differently put, newer types of permits
and techniques in migration control may be a better route to
fulfilling the objectives of the GATS than creating artificial
fast-tracks and exceptions for certain sectors.
In many respects the new system of migration control which the
South African Parliament is expected to pass on May 8, 2002 will
represent an advanced status of that "progressively higher
level of liberalisation" referred to in Article XIX of the
GATS. In fact, South Africa realised that in order to capture its
full potential for economic growth it must increase its available
level of skills and reach a critical mass of skilled and
productive people and consumers. Having crossed such an important
policy threshold, we applied our mind to the formulation of
techniques which could enable our Government to classify the
skills which are needed and to determine the degree to which they
are needed. We had to determine both a "need test" as
well as classify skills, which in theory seems simple but in the
practice of a Government with limited resources, proved
cumbersome and to a certain extent self-defeating.
In respect of the classification of skills we realised that our
economy needs a range of skills comprising not only those which
are easy to classify, such as the customary liberal profession of
medical doctors, accountants, engineers and lawyers, but also
skills of people who, for instance, can operate complex machinery
or had managerial skills. Needing both higher and lower level of
skills, we found it difficult to define their relevant thresholds
and priorities. An added difficulty was that the Government
usually tends to assess skills through qualifications, while in
present days labour market, the link between skills and
qualifications is often irreparably broken. Experts such as
web-designers and computer technicians often do not have
qualifications which can be reduced to a diploma or a degree,
while often qualifications and job-descriptions are no longer
tied together, as engineers may act as business managers. In the
end, only an employer has the capacity to determine whether a
specific employee or service provider is suited, capable and
qualified to perform any given task.
Accordingly, the new system of migration control of South Africa,
while contemplating a number of different work permits, provides
for a new type of work permit which is expected to become the one
mainly used because of its simplicity. This work permit is
subject to no quotas, nor numeric limitations or skills
classifications. It is also not subject to any fixed time4rame.
It is issued on the basis of two simple criteria. The first one
is a certification by a certified public accountant that the
foreign employee will be remunerated at terms and conditions
which in terms of applicable laws, collective bargaining
agreements and practices, are not inferior to those applicable to
a South African national in the same or similar workplace. The
second, is a simple licensing fee paid on a quarterly basis into
a fund established for the training of South African nationals.
This mechanism embodies the "need test" because it
assumes that if at parity of labour conditions someone is willing
to pay a premium to employ a foreigner, then that foreigner has
skills which are needed and may not be supplied by a national who
would be cheaper to employ. This mechanism also maintains a
connection between foreigners working in South Africa and the
training of our nationals.
Furthermore, through this mechanism there would be no need to
determine time limits for temporary work permits, because,
obviously for as long as the employer is willing to pay the
licensing fee, the employee will continue to be needed. The
issuance of this type of work permit will require no evaluations
and can be completed almost on-sight once all the relevant
information required in the application form has been provided.
Naturally, in addition to the customary information satisfying
security considerations such as police clearance and identity
documentation, the application will require proof of whatever
qualifications may be necessary to perform the intended job,
together with the certification by a South African agency
dedicated to this task, that such qualifications are equivalent
to those issued in South Africa.
The important feature of this permit is that it no longer relies
on the need of distinguishing between skilled and unskilled
workers and having to justify them into groups or quotas. The
tool of policy formulation available to Government to regulate
migratory fluxes is that of the licensing fee which can be raised
in respect of foreigners who, on an aggregate basis, are deemed
to be most necessary to our economic growth. This means that the
licensing fee may be extremely low in respect of foreign surgeons
who are needed and extremely high in respect of foreign
street-sweepers which the South African labour market does not
seem to specifically need. As an individual guarantee, once a
foreigner enters at a certain level, the licensing fee applicable
to him can not be raised for five years, which is the period to
qualify for permanent residence.
This system also does not require Government to differentiate
workers and service providers on the basis of their nationality
or origin. The employers will make that determination. In this
fashion the fundamental objective of the GATS of parity of
treatment among Members will be accomplished. Our Department will
also need to carry out a new function which is that of deterring
and redressing xenophobia and, once the system grows into its
full potential, it is envisaged that this function will also
address potential xenophobic patterns developed by employers who
on the basis of prejudice would give preference to foreigners
from one country over equally qualified foreigners from other
countries.
Another important feature of the South African reform of
migration control is that of corporate permits which are going to
be issued to large corporations and not-for-profit organisations,
which will be allowed, in terms of such permit to employ a fixed
number of foreigners. The corporate permit will enable such
organisations to issue individual permits to foreigners directly
from their human resources department and to pay an aggregate
amount of licensing fee to the Government. By definition, the
aggregate amount of this licensing fee will be lower than the
aggregate amount of the licensing fee which the organisation
would need to pay if they were to employ the same number of
foreigners on an individual basis through individual work
permits.
Furthermore, the law enables the Department to partially or
entirely waive the licensing fee if the organisation develops
training programmes for South Africans which are specifically
designed to transfer skills from the foreigners to our nationals
to reduce such organisation's dependency on foreign labour. This
is a freely negotiated process. It must be stressed that such
organisation has also the opportunity of hiring additional
foreigners with ordinary work permits, in lieu of using a
corporate permit or in addition to the number of foreigners it
may hire under the corporate permit. Effectively, the corporate
permit privatises the issuance of work permits and enables a
reliable and suitable organisation to move the work permits
allocated to it under the corporate permit, from one foreigner to
the other, thereby meeting its internal needs and enhancing
labour market mobility. Government will supply the procedures,
forms and requirements which need to be verified and complied
with in the issuance of such permits and will monitor and control
their compliance as it would do with one of its decentralised or
satellite offices. If the corporate permit holder is found not to
be in compliance, the privilege may be revoked.
These permits are expected to create a great deal of flexibility
for providers of services and their employees. They are in
addition to inter-company permits which enable the transfer of
services from one company to a foreign subsidiary for up to three
years and to investor permits which allow foreigners to establish
businesses in South Africa. Inter-company permits will be subject
to the usual methods which evaluate needs and justifications for
the employment of the foreigner but not a labour market test, all
of which may become less convenient than the procedure offered by
the new type of permit. However, the investor permit has also
been greatly simplified and the relevant procedures made
objective so that no discretionary assessment is required. The
elimination of stages of evaluation, inter-departmental
consultation and review associated with the issuance of single
permits is, in my opinion, a better way to achieve the objective
of the GATS than the use of "a Model Schedule" creating
fast-tracks for special categories, or resorting to the GATS
permits or visas. Undoubtedly, the notion of the GATS permits and
visas is intellectually pleasing but is extremely difficult to
unpack into the regulatory reality of migration control and at
best may offer the opportunity for a few exceptions for high
level skills.
South Africa's reform of migration control has been seven years
in the making and has tried to register the latest requirements
and the trends emerging in the age of globalisation. Effectively,
it has tried to move all stages requiring evaluation,
consultation and discretion at the aggregate policy level so that
they would not be necessitated in the processing of the
individual application. Furthermore, it has addressed the need to
provide migration control with the highest degree of human rights
protection, which is an unusual feature as throughout the world
even in highly developed and democratic countries such as the
United States, the functions associated with migration control
usually register the lowest level of human rights protection
available in that country. For instance in South Africa, warrants
may be required for the deportation of foreigners and each
decision relating to permits must comply with the full measure of
available administrative justice, judicial review, transparency
and accountability. These are also significant elements of
compliance in respect of Article Ill, Article VI, Article XIX and
other provisions of the GATS.
Like many other countries South Africa faces the challenge of
having to change the administrative culture presently
underpinning migration control. In a symposium such as this one,
it becomes clear that many countries will need to face the
challenge of a profound paradigm shift in their attitude towards
the international migration of people and, perhaps, question the
continuing validity of long-standing classifications based on
skills, qualifications and differentiation between temporary and
permanent residents. The reality of migration is that many of
such elements are in a continuum, and even in respect of
residence the distinction between temporary and permanent does
not survive the critique of the often observed phenomenon that
temporary residence is a bridge into permanent residence. This
might not be desirable, but cannot be wished away and may need to
be accommodated on a larger scale. For instance, in our new
system of migration control provision is made that after five
years of temporary employment, a foreigner may graduate into
permanent residence.
By and large, South Africa is also about to make a profound
paradigm shift from a mind-set wishing to control foreigners
within its boundaries, to a new approach which registers the fact
that foreigners are part of our society in numbers and varieties
which Government can no longer define nor control upfront.
Therefore, the new policy will be less concerned about the
presence of foreigners and much more concerned about enforcing
the restrictions on their activities. The new system will shift
administrative capacity and emphasis from the issuance of permits
into the enforcement of the law in workplaces, educational
institutions and other places in which foreigners may conduct
activities which they are not authorised to conduct. If reliance
is to be given to the capacity of the market to regulate the
number of foreigners who are really needed, then law enforcement
becomes essential to prevent the creation of black labour markets
and ensure that the more liberal regime does not create an
opportunity for vast situations of illegalities. In looking
around the world, one notices that it is quite common that the
bulk of administrative resources available for migration control
are employed in the processing of permits, rather than law
enforcement. We believe that a more liberalised regime can only
become viable and widely politically acceptable if emphasis and
resources are shifted towards law enforcement.
In order to simplify procedures in South Africa we have also
collapsed into one, many different permits which were typical of
our tradition as they are common in most countries. We realise
that in the modern world there is little practical value and
little administrative necessity for the distinction between
tourists and businessmen and between them and those who come into
the country for a short period of study or a short period of
medical treatment. Therefore, we have designed a general entry
permit which is applicable for three months, renewable for
another term of up to six months, which can be employed for
tourists, business, studying, medical treatment and any other
activity other than those for which a work permit is required.
Work permits are usually required for subordinate employment
only.
It must also be noted that the definition of "work" for
which work permits are obtained excludes work conducted for a
foreign employer pursuant to a contract which only partially
calls for activities in South Africa. The definition also
excludes business and professional work mainly based outside
South Africa but requiring activities within South Africa.
Effectively, the exclusions cover most of the most significant
aspect of trade in services in respect of which a work permit
will not be required and which will be able to be conducted with
a general entry permit for a three month term renewable once.
Therefore, the general entry permit seems to be a technique which
greatly advances compliance with the provisions of the GATS and
the fulfilment of its objectives.
From a regulator's viewpoint for as long as we are satisfied that
all the relevant security concerns have been addressed, such as
police requirements, the assurance that the foreigner has
sufficient means to support his intended activities in the
country and is earnestly intentioned to leave the country before
the expiry of his permit, we are much less concerned about what
the foreigner does for as long as he does not work as an
employee. We believe that this new liberal system reflects the
needs of the future and embodies the spirit and the mandatory
provisions of the General Agreement on Trade in Service. We are
moving into uncharted territory with the benefit of no memory
from a past which is no longer applicable to our present and
future challenges. There is no doubt that if we do so we will
discover error, shortcomings and possibly even naivety in our
approach.
However, our Minister Mangosuthu Buthelezi, has often indicated
that he perceives the 21st century having to engage
with migration issues and formulate for them a new conceptuality
and policy framework, almost on the same basis as the 20th
century struggled with developing concepts and the policy
framework for human rights. We feel that we are all breaking new
ground and find it extremely exciting that perspectives are
merging in the view of a globalise world. Therefore, as far as we
are concerned it is proper and filling that the trade perspective
may force reform of migration control in all countries of the
world. However, we warn of the difficulties as, at present, the
language, concepts and policy slant of trade and that of
migration control are profoundly different and cast in different
moulds and frames of reference. It might be the case that
migration control functions may need to be pulled into the new
perspective amongst resistance, suspicion and rising political
tensions. We can only express to those who will undertake these
efforts our best wishes and pledge to them whatever assistance we
may provide.
While migration control will need to adjust to international
trade requirements it might be necessary that to a lesser degree
the reverse may also need to come about. For instance, I feel
that sectorial commitments will remain extraneous to many systems
of migration control and that, with a few exceptions, horizontal
declarations will continue to characterise the practice of
negotiations in this field. Moreover, sectoral commitments by
themselves may not solve the problems encountered in the trade in
service. For instance, work permits may be available, but the
requirement that one must apply for them from outside the country
and the prohibition against the adjustment of status may become
effective barriers toward a work permit.
Moreover, there may be exceptions for identified categories of
sectors, but, as we move towards a more liberalised regime of
international movement of productive people, such exceptions are
bound to diminish if we rise to the challenge of changing systems
of migration control so that they may apply with equal
transparency, efficiency, liberality and expeditiousness to all
productive people and service providers. In this respect this
symposium may highlight the need for an inter-disciplinary
dialogue and cross-pollination within the framework of the
understanding that Mode 4 issues will set a foundation for a
completely new mind-set on the international movement of people.
Appendix 2:
THE CENTRE FOR DEVELOPMENT AND ENTERPRISE
KEY ISSUES IN IMMIGRATION POLICY AND A BRIEF ASSESSMENT OF THE
DRAFT IMMIGRATION LEGISLATION IN THE LIGHT OF SOUTH AFRICA'S
CURRENT NEEDS
April 2002
1 ISSUES AROUND IMMIGRATION IN SOUTH AFRICA
The current discussions of the Draft Immigration Legislation
highlight the complexity of the issue of the entry of foreigners
into any country. Immigration policy tends to be controversial in
most parts of the world. Many advanced and otherwise progressive
societies embarrass themselves by their internal politics around
the issue of immigration. The xenophobic attitudes of many
mainstream European political leaders to the entry of foreign
immigrants, for example, is striking in a region in which
national borders and economic boundaries are rapidly being
dismantled.
At the same time, in the very countries in which there is
acrimonious debate about the entry of foreigners, forward looking
immigration policies have brought huge benefits to the economies.
Australia is a keynote recent example; a country achieving rapid
economic expansion and socio-cultural progress which are
substantially due to the skills and other contributions of the
massive 20% of its population composed of immigrants.
Against this background CDE would like to briefly offer some
insights and facts relevant to the issue of immigration in our
country as a background to a consideration of the draft
legislation currently being considered by Parliament. We offer
these inputs in the hope that they will contribute to a
considered and forward-looking response by parliamentary
decision-makers to the issues that the draft legislation raises.
South African Attitudes to foreigners
One of the many reasons why South Africa fell behind in the
race for development and general prosperity during the Apartheid
period was the fact that general immigration was discouraged.
Many of the scientists, budding entrepreneurs, craftsmen and
unskilled but ambitious and energetic foreigners who contributed
so dramatically to the American economic miracle could have come
to South Africa, but they were excluded or discouraged. Why?
Up to the early Twentieth Century South Africa's modern economy
was driven by the contributions of immigrants. These injections
of economic energy and skill, which complemented our own rich
resources of labour, craft and agricultural skills came from the
current Malaysia, Holland, Germany, France, the UK, Portugal,
Madeira, Greece, Latvia, Lithuania and other European countries,
from Lebanon, India, China and Pakistan, and from a range of
neighbouring regions in Africa.
In the early Apartheid period after the Second World War,
however, racial barriers to immigration, which had steadily
strengthened in the eighteenth and nineteenth centuries, hardened
even further and ethnic and religious barriers were added.
Light-skinned Protestants from countries that were deemed to be
culturally compatible with white South Africa (The UK, Germany,
Netherlands and other northern European countries) were favoured
as immigrants, to the virtual exclusion of other sources of
immigration. Later the immigration policy relaxed slightly under
the impact of shortages of skills in the seventies and eighties,
but nonetheless many would-be immigrants were excluded because
they did not have standard formal qualifications that officials
could categorise and prioritise, or because they did not have
specific job offers. What South Africa lost as a consequence was
to the immeasurable gain of North America, Brazil, Argentine,
Israel, Australia and New Zealand.
With the ending of apartheid and the advent of democratic South
Africa there has been a slight and very cautious change for the
better. But many of the old anxieties, stereotypes and mistrust
of foreigners has remained. Today we are a more heterogeneous
population, with a more visible presence of foreigners in the
country - East African academics, traders from West Africa,
Ghanaian hairdressers on street pavements, alleged 'sharp
operators' from Nigeria and more people from the East and Eastern
Europe than we had previously. But with this slight relaxation of
entry the issue of immigration - by both skilled and unskilled
people - has emerged as an important, often emotional, area of
controversy. The anxieties of South Africans have been very
clearly reflected in the debate around the draft immigration
legislation. Some of these anxieties are real but more are rooted
in the xenophobia that is typically aroused by immigration the
world over.
Immigrants are seldom popular, but to their credit, sensible and
rational governments and leaders in the more successful economies
of the world have prevailed over many of the fears of their
citizens and opened their doors more widely to immigrants. In so
doing they have achieved for their countries a remarkable form of
investment - namely skills, fresh perspectives on economic
opportunity and the energy born of a need to make a new life in a
new country. Even more significantly, the skills gained have been
produced at the cost of taxpayers and family investments
somewhere else in the world - a free resource akin to the inflow
of capital.
With this new legislation our leaders face the same challenge of
dealing persuasively with the fears and perceptions in the
population while grasping not only the opportunity of but the
categorical need for an enrichment of our skills and human
resource base. However unpopular it may be, we dare not repeat
any of the mistakes or harbour any of the xenophobic
misconceptions of the apartheid period.
If South Africa - as is clearly stated in government's
macro-economic strategy - wants to become a competitive economy
in the global system, we have to accept that there is a vital
relationship between opening our borders to trade, industry,
culture, communications and investment capital and opening our
borders to the human capital -the movement of people -- which
must inevitably follow.
Illegal unskilled immigration complicates the problem
Achieving a rational attitude to immigrants is made more
difficult by the presence in South Africa of an unknown but large
number of illegal immigrants from countries to our immediate
north. Many of these illegal immigrants are making a valuable
contribution to our economy, particularly in the cross border
trade that their activities involve. Even at a very low level, a
Zimbabwean, Mozambican or Malawian illegal immigrant who buys
goods in South Africa to take or send to his or her home country
is expanding our consumer market. If this person also brings
curios or textiles from his or her home country to sell in South
Africa, it is a form of external investment in our economy. Some
of them compete with local traders but there are many others who
sell goods that would not otherwise be available locally. Some of
them take low-paying jobs, particularly in agriculture, but there
are conflicting views on the extent to which South Africans are
available for these jobs on the lowest rungs of employment.
Our very high rate of unemployment is often taken a basis for
arguments that we must limit as much competition for scarce jobs
from immigrants as possible. This is the biggest mistake that
could possibly be made. The recent Metsebetsi Labour Force
Survey conducted for the Department of Labour shows that
unemployment rates among people with any kind of tertiary
diploma, certificate or degree are less than one-third of the
average rates. Unemployment is high among secondary school
leavers but this unemployment is concentrated among those with
mediocre standard grade passes in subjects other than maths and
science. The importation of people with tertiary qualifications
and those with secondary qualifications at a level equivalent to
tertiary admission is more likely to create jobs by servicing the
economy than it is likely to take jobs away from South Africans.
Our unemployment problem is a skills problem.
The country's focus on illegal generally unskilled migrants and
the often baseless fears that immigrants will take opportunities
away from South Africans, have diverted attention from an
emerging crisis: our dire shortage of managerial, professional,
technical and entrepreneurial skills.
The skills crisis in South Africa in brief
South Africa's emerging skills crisis is a major cause for
concern. While it may not always be apparent on the ground in our
currently slack economic conditions, if and when we begin to grow
at the rates we need to create jobs, our shortage of skills will
become as clearly manifest as our shortage of investment capital.
The following are current pointers:
· South Africa has a low and generally declining rate of formal
(legal) immigration. Since 1993 this country has experienced a
net annual loss of people through emigration, a trend that has
not occurred previously since World War 2. South Africa
experienced its eighth net annual loss of people through
emigration in 2001. The loss of over 7400 people was only
slightly lower than the net loss in
2000, which was the highest recorded annual loss since l940;
· The profile of those leaving shows a disproportionate
number of highly skilled people. In 2001 South Africa lost 2929
professionals and technicians and attracted only 524 people in
the same categories. South Africa imported 20 engineers and
related technologists while 358 departed - for every one gained,
18 were lost. In accounting and related professions, South Africa
imported 14 and lost 358 - a ratio of one to
· A recorded total of 11 309 people emigrated from South
Africa in 2000 and this increased to 12 260 in 2001, setting a
new record. The official records appear to be serious
under-estimates of the true picture (see below). True, our
numbers of immigrants increased slightly between 2000 and 2001,
but this has hardly affected the dramatic ratio of losses to
gains.
· Some 63% of emigrants were economically active, as opposed to
only 22% of immigrants
· Serious though the general skills needs and shortages may be,
they leave out of the reckoning the skills and aptitudes required
to drive new business ventures, particularly those in the small
and medium enterprise sectors. In many countries it is the
immigrants who have driven the growth of small businesses;
· South Africa's ability to replenish these skill losses has
diminished. According to the Minister of Education 'there is a
crisis at every level of the education system'. As a result there
were declining numbers of matriculants in 1999 and fewer entrants
to universities in 2000.
· Since then there has been a slight general improvement in
education output with the senior certificate pass rate increasing
to 62%. The proportion of people passing with a university
entrance exemption, however, increased only marginally from 14%
in 2000 to 15% in 2001. However, the raw numbers of candidates
with matriculation exemption, at just under 68 000 in 2001 from
public schools, is still well down on the numbers in 1994 of over
88 000. Furthermore, passes in maths and science at the higher
level (which is regarded as the level required for further study)
are still falling. To have a falling rate of output in maths and
science as South Africa prepares to compete in the global
'knowledge economy' is nothing short of a national crisis.
· Research by ING-Barings estimates that 12,1% of highly skilled
workers, 21% of skilled workers and 29,4% of semi-and unskilled
workers will be HIV positive by 2005. The report points out that
the 'cost of supporting and replacing a highly skilled workers
with HIV/Aids will be substantially above those for semi- and
unskilled workers. The Department of National Education
anticipates that the effect of Aids on the teaching profession
will lower the teacher to learner ratio from 1:32 currently to
1:50 by 2006.
In other words we are losing large numbers of highly
trained and educated people each year and our education system is
incapable of replenishing the supply. One may hope that the
performance of our schools will improve but it will quite clearly
take years before it turns out the skills that we need. In the
meantime our only possible source of additional skilled labour is
immigration.
Policy-makers are in the dark
Compounding the controversy surrounding migration is the fact
that there is only flimsy empirical data on the actual numbers of
immigrants, both skilled and unskilled; and importantly on the
overall impact they have on the social, political and economic
life of South Africa, in particular the labour market. For
example our estimates of the number of illegal immigrants range
between 100 000 and 8 million, which means that as a basis for
policy-making they are worse than useless.
The scale of South Africa's 'brain drain' is also disguised by
significant data deficiencies. According to Development Policy
and Research Unit statistics there were 41 496 professional
emigrants from South Africa between 1989 and 1997, nearly four
times larger than the official figure of 11 255. The South
African Network of Skills Abroad argues that almost three times
as many people emigrate as are recorded in official statistics.
Even the government is conceding that the official numbers of
people emigrating is low. Ian Macun, director of the skills
development unit in the Department of Labour reportedly said that
the official number of skilled people that have left the country
since 1994 - 54 000 - 'is probably a conservative
underestimate’. Our official statistics are underestimates
because they do not take into account what has been termed grey'
emigration, whereby people leave on holiday and simply do not
return, or return as occasional visitors, thereby cutting out the
red tape involved in emigration.
The absence of convincing data on the numbers and socio-economic
impact of immigrants makes it difficult to separate fact from
fiction and careful analysis from xenophobic rhetoric. This
underlines the critical need for authoritative national research
on the socio-economic impact migrants have on the country - both
positive, negative and unintended - as a priority. Until then
policy-making will occur in a climate of sentiment, paranoia and
empirical ignorance. This also means that policy-makers have to
take the known facts very seriously, such as those on the
shortage of skills now and for the foreseeable future.
2. ASSESSING THE DRAFT LEGISLATION
Government has devoted considerable effort and resources to
develop a new immigration policy and legislation over the past
five years. A task team was established in 1996 to prepare a
Green Paper on Migration Policy that was published in 1997; two
years later, the White Paper on International Migration appeared.
The critical need for skilled migration was given a new urgency
by President Mbeki in his State of the Nation speech in February
2001 when he committed government to 'improving competitiveness
by lowering input costs throughout the economy' and to reviewing
'immigration laws and procedures to attract skills into our
country’.
An Immigration Bill was tabled in parliament in October 2001,
after four years in the making. Minister Buthelezi announced that
'the Bill intends to open the front door to beneficial
immigration to SA and close the back door to illegal immigration.
The Bill lists among the objectives and functions of migration
control: 'to promote economic growth by ensuring that businesses
in the Republic may employ foreigners who are needed'. There is
little doubt that the broad intentions behind the
legislation are forward looking and appropriate to the needs of
the country.
As with most policy, however, the final product is influenced by
a variety of inputs from other departments or by considerations
that may contradict the initial broad intentions. For example,
earlier policy documentation that preceded the current draft
legislation made provision for an expert and independent
Immigration Board, but this sound principle clearly did not
survive in the face of bureaucratic and political concerns to
make sure that government control over the implementation of
policy is not diluted. Hence, as one would expect of any end
product of multiple inputs, the draft Bill has some seriously contradictory
features.
Positive features
Much of the initial progressive intention has survived in the
provisions that Work Permits may be issued as a routine
procedure, subject to certain conditions, in all cases where an
employer indicates a need to employ the applicant. Corporations
employing large numbers of foreigners may also be issued with a
Corporate Permit, thereby becoming accredited as agents of the
Department of Home Affairs with the power to issue work permits
up to a specified limit and under certain conditions The Bill
also provides for the issuing of Investor and Self Employed
Person's permits subject to minimum investment capital
requirements. Depending on the level of the capital requirements,
this could facilitate the entry of the kind of
entrepreneurs who could add value to our economy. Hence the bill could
ease serious bottlenecks in access to skills and is a large move
towards an immigration policy that is consonant with a dynamic
open economy.
Aspects reflecting South Africa's traditional attitudes to
immigration
CDE is concerned that the legislation contains conditions
applicable to the issuing of Work and Corporate Permits and other
important provisions that contradict the general principles of an
open market economy that are claimed to form the basis of the new
policy.
A general concern is that the legal phrasing in the Bill, in
particular the general use of the words 'may grant' instead of
'shall grant', could enable general discretion to be exercised by
officials on the basis of departmental guidelines not stated in
the Bill or perhaps those pertaining to entry permits other than
work permits. Hence the legislation does not provide a
categorical basis for a 'rule of law' since its conditional
phrasing could become the basis for a 'rule of regulation' if
officials choose to make it that.
More specific concerns are that an employer wishing to employ a
foreigner, has to pay a training fee for each foreigner employed,
such fee to be credited to the National Training Fund - in effect
a tax on the recruitment of scarce skills that will raise
operating costs. In the case of both Work Permits and Corporate
Permits, the Bill requires that chartered accountants certify
that the terms and conditions of employment shall not be inferior
to those prevailing in the market for local citizens. Here we
must bear in mind that if the skills shortage has driven up the
relevant labour costs over a period, the inflated levels could
become the norm for such certification, thereby substantially
negating the economic benefits of any inflow of scarce skills.
For smaller companies in particular, providing these professional
certifications will be a disincentive and will also drive up
operating costs.
The Bill also states that certifications will lapse if the
Department of Labour, for good cause, objects to them (although
the time period for such objections is very brief).
The legislation does provide an alternative clause allowing Work
Permits to be issued to foreigners with certain skills and
qualifications that could circumvent certain of the requirements
referred to above, but the particular skills and the numbers of
permits will be determined according to guidelines prescribed
after consultation with the Departments of Labour and Trade and
Industry, hence allowing bureaucratic discretion to be exercised.
There are other avenues for legal entry in the clauses of the
legislation, but the conditionality of the general phrasing
('may' instead of 'shall') could possibly subject all clauses to
bureaucratic overrides, as it were.
The prescription of 'needed skills' and the determination of
limits on numbers is also applicable to Permanent Residence
Permits for foreigners. Although such guidelines could be
flexibly applied, there are clearly views in government that are
grounds for expecting the opposite. The government's Human
Resource Development Strategy released in April 2001 and
statements by the Director-General of labour also refer to the
recruitment of only 'approved scarce skills' and seem to be based
on a perceived need in some sections of government to regulate
the entry of skills on the basis of government determinations of
skills gaps. CDE has questioned the capacity of any government
agency to anticipate the market in identifying demand for skills,
for the following reasons:
· in the current global economy, skills needs are fluid and
subject to rapid change;
· such assessments will be based on the needs of existing formal
employers and not on the needs of small businesses and
entrepreneurs;
· skills-boundaries have become too blurred and many skills are
too informal in nature for any classificatory system to provide
the 'intelligence' needed for the establishment of guidelines for
immigration;
· it is impossible to know exactly what skills a society needs
or to predict exactly the kind of work graduates will end up
doing.
Hence, in these qualifying conditions set out in the Bill as
discussed above, one sees indications of a pervasive assumption
that skilled immigrants are a threat to the interests of formerly
disadvantaged South Africans or that they will take jobs away
from South Africans. For example a clause in the Bill pertaining
to permanent residence requires that it be demonstrated that no
South Africans are available for appointment. As CDE has argued,
this assumption of immigrants as a threat to South Africans is
difficult to sustain given the fact that:
· more skilled people will increase the capacity of the South
African economy to expand and provide more job opportunities for
all residents;
· more skilled people are necessary to expand the capacity of
the country to train and educate all its citizens to world class
standards;
· more skilled people will play a part in lowering the income
gap between highly skilled and unskilled in the country; and
· many skilled people are likely to create their own employment
as entrepreneurs, thereby expanding the economy.
CDE has stated that the Bill is a 'significant improvement on
current legislation under the Aliens Act and that it has
introduced important objectives with respect to immigration
policy and its practical implementation'. Notwithstanding the
positives in the new Bill, in the light of the concerns outlined
above and others, CDE argues that the policy falls short of what
the economy requires. Given the fact that our economic growth
rates, although persistently positive, are well short of the
rates that will begin to mop up unemployment, the country needs a
strong and unambiguous policy to remove all impediments to
skilled migrants entering South Africa. This calls for the kind
of courage that our Cabinet has demonstrated in other aspects of
policy.
Suggestions for amendments
* CDE recommends, inter alia, that economically active
persons with university entrance (matriculation exemption
level) qualifications in maths, science, technologies, vocational
subjects and commerce be issued with Work Permits without any
impediment.
We recognise that such a proposal is highly unusual in
international immigration law and it may appear to be radical.
Our situation is unusual, however. In any event, these days
countries circumvent their own immigration regulations when they
set out to attract the skills they need. There are many countries
that, despite their legislation, actively 'poach' skills from
other countries to plug shortages of skills at home. For example,
Singapore, Germany, Ireland, South Korea, the US and UK have all
sent 'poaching' expeditions to India to try and recruit
information technology engineers to make good an increasingly
alarming shortage in IT skills back home.
CDE is not in favour of the mass entry of unskilled or
inadequately skilled immigrants, but we have hopelessly
inadequate numbers of people who are equipped for higher
education or who have the qualifications to be trainable at
advanced levels, hence our bold recommendation. South Africa may
have many unemployed standard tens, but they do not have higher
grade maths, science and vocational subjects at university
entrance level.
* CDE also recommends that entrepreneurs and people who are
generally employable at taxable levels be granted entry permits.
We are aware of the fact that these broad guidelines may pose
problems for the government in the development of criteria for
approval. Such problems are well worth the effort to solve,
however.
Immigrants generally have entrepreneurial talent and ambition,
are prepared to take risks and possess the necessary drive to
survive and succeed in a foreign country. South Africa itself has
many examples of business success by ethnic minorities including
Chinese, Portuguese, Italians, Greeks, Jews, Lebanese, West
Africans and Indians.
* CDE also recommends that the conditional phrasing of the
provisions of the Bill be replaced with legally binding
terminology, with the use of the words 'shall' instead of 'may'.
The present phrasing will become a huge burden on government
because it will in time be found to lack legal clarity and will
spawn challenges of interpretation. It also does not provide
investors or employers with the certainty that will underpin
confidence.
Concluding comment
The position of government on migration policy has been
complex and confusing for a long time. This draft legislation
moves towards clarity and the confidence to address critical
needs. We conclude that the legislation points the way to
accommodate our economic requirements and needs for skills.
Because of its contradictory aspects, however, the outcome cannot
meet the urgency of South Africa's current situation.
It is clear from the general policy position of the treasury and
the implications of macro-economic policy that a clear and
forward-looking immigration policy is critically required, as
President Thabo Mbeki's statement in his February 2001 State of
the Nation address has emphasised. But the contradictions in the
draft Bill suggest that the executive has clearly not yet moved
firmly to resolve critical differences in perspectives within
government on immigration and to achieve a coherent viewpoint in
the government as a whole.
Even more than South Africa, Africa as a whole is leaking
precious skills to the rest of the world. If South Africa is to
take the lead in the valuable NEPAD initiative, it has to become
part of the solution to this problem and not part of the problem
as it currently is. Therefore it has to stop the serious leakage
of its home-grown skills and enter the global race for the attraction
of foreign skills, the costs of which have been subsidised by
better-resourced governments elsewhere. This is the most valuable
'aid' that a country can acquire.
In the global economy today, economic growth and competitiveness
are increasingly determined by high level skills inputs, the
value added by innovations in management, production systems and
technological innovation and by the levels of innovative
entrepreneurship and new risk ventures. Government's immigration
policy should therefore be much more effectively positioned as a
facilitator of national economic growth. South Africa's economy
and education system cannot afford to suffer from what has
hitherto been a lack of resolve and leadership in government to
reconcile its different viewpoints on the depth of our skills
crisis and the urgent need for foreign skills.
Centre for Development and Enterprise April 2002
'The material presented here is drawn from a range of CDE
publications People on the move: Lessons from international
migration policies (June 1997) and People on the move: A new
approach to cross-border migration in South Africa (June 1997);
CDE's response to the Draft Green Paper on International
Migration, (June 1997) as well as CDE's response to government's
White Paper on International Migration and Innnigration Bill of
29 June 2001 titled, South Africa's skills crisis: Is the new
Immigration flill good enough?. These publications are available
from CDF. See our website, www.cde.org.za.
Metsebetsi Labour Force Survey FAFO Report number 360,
conducted by FAFO for the Department of Labour, 2001
Fast Facts no 6 2001
'~ Daniels, G 'SA's skills shortage crisis' Mail and
Guardian 7 December 2001
South Africa Survey 2001/2002 South African
Institute of Race Relations, Johannesburg, 2002:p197 Minister of
Fducation, Kader Asmal' 5 policy statement Call to action:
Mobilising citizens to build a S9uth African education
and training for the 21£' century 27 July 1999
ING Barings Bank, The demographic impact of MDS on the South
African economy South African Research Johannesburg:
ING Barings Bank, 17 December 1999, p14.
~"' Fast Facts, no 2, South African Institute
of Race Relations, February 2002
~ Quoted in 'Brain drain figures flawed says report' in Dispatch
20 December 2001
Quoted in Daniels, U 'SA's skills shortage crisis' Mail and
Guardian 7 December 2001 'quoted in The Citizen 29
August 2001
Government Gazette Vol 432, No 22439, Republic of South Africa,
Pretoria, 29 June 2001.
'Front door open, back door shut' in Financial Mail 28
September 2001
~ Media release, Centre for Development and Enterprise November
2001
"Human Resource Development Strategy for South Africa, A
nation at work for a better lift for all April 2001