WHEN THE STATE FLOUTS ITS OWN IMMIGRATION LAW

Business Day, 29 May 2008

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With xenophobia-related violence having spread to seven of SA’s nine provinces, immigration policy has again come under scrutiny. While policy makers appear to have anticipated some of the problems that an influx of immigrants would create, recommendations provided for in the existing legislation to avert a possible crisis have not been fully implemented. The government itself appears to be in contravention of the Immigration Amendment Act, a law that, if implemented correctly, may have gone some way towards preventing the attacks on immigrants. In the preamble to the Immigration Act of 2002, amended in 2004, the government is instructed to: Ensure that the country’s borders “do not remain porous”. However, auditor-general Terence Nombembe told Parliament this year that police had recorded a 70% vacancy rate in the border protection service. The police took over the border protection function from the South African National Defence Force in 2004, but Nombembe found there had still been no overall plan relating to borderline policing. Prevent and counter xenophobia both within government and civil society. However, police officers themselves are accused of inciting xenophobia. Safeguard the South African labour market so that the contribution of foreigners does not adversely affect existing labour standards and the rights and expectations of local workers. However, incidents of exploitation of illegal immigrants have been well documented by trade unions and NGOs. The Immigration Act also established an Immigration Advisory Board, a statutory body that included representatives from government departments and civil society. The board, which included the trade and industry, labour, education and safety and security departments, was mandated to develop further policy to help implement the act. Although the board ceased to function — reportedly because the home affairs minister refused to accept its statutory powers — a similar structure has been established by President Thabo Mbeki in the wake of recent xenophobic attacks to analyse the crisis and chart a way forward. Mbeki held the first meeting of the new panel on Monday following his announcement that it would co-ordinate the government’s response to the crisis. The disarray in the home affairs department on immigration is nothing new. In 1994 the African National Congress ignored the strategic value of the ministry and gave it to Inkatha Freedom Party (IFP) leader Mangosuthu Buthelezi. The department has seen five directors-general and has been on the receiving end of several qualified audit reports from the auditor-general. It has also been plagued by corruption and disgraced by incompetent officials. The Institute for Security Studies (ISS) says the department’s failures have contributed to the xenophobic violence. “The lack of control over persons entering the country illegally has been accentuated by the near-collapse of home affairs. Originally used as a pawn in the efforts to co-opt and then emasculateButhelezi, the management and systems of the department have been allowed to deteriorate to a degree where it is difficult to see how it can be turned around,” says ISS executive director Jakkie Cilliers. However, refugee policy analyst Kaajal Ramajthan-Keorg has defended the government's immigration policy, saying it is based on best practice. SA’s refugee policy is based on a model of integration that argues for refugees not to be isolated into camps. A similar model is used in Canada, the US and most Scandinavian countries. Most other African countries adopt a policy of setting up camps to deal with an influx. While supporting the policy of integrating refugees into society, Ramajthan-Keorg said the government needed to “go back to the drawing board” on its practice of “arresting, detaining and deporting” illegal immigrants. “It does not work, they simply come back," Ramajthan-Keorg says. She recommends that immigration legislation be amended to recognise nonskilled foreign workers in a category other than asylum seekers. Ramajthan- Keorg says “ordinary workers” such as farm labourers are forced to work illegally in the country as they cannot get work permits.