SOUTH AFRICAN IMMIGRATION LAW

INTERVIEW WITH JONATHAN KLAAREN ON THE LAW REPORT

SAfm, 4 September 2000 (editor John Orr)

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JOHN:

A very good evening to you again from The Law Report. Now, the law relating to aliens - or immigrants, or non-citizens, or what you will - and the implementation of that law has come under a fair amount of scrutiny in recent months. Foreigners who are married to South Africans, for example, have had a far from easy time in getting entry and residence permits. One case, at least, has gone all the way to the Constitutional Court.

There's been talk about amending the legislation that deals with aliens. Way back in March of last year, 1999, the government produced a White Paper on a reform of the Aliens Control legislation, and I understand that lately a Draft Bill has been to Cabinet.

Well, with me in the Law Report studio this week to shed some light on what seems to be a fairly confused situation, if not a contested one, is Jonathan Klaaren. He's an associate professor in the Wits University School of Law. He teaches Constitutional and Administrative Law there. He's also on the executive committee of the National Consortium on Refugee Affairs.

Jonathan, every country in the world has law or policy or whatever which deals with foreigners and aliens, and South Africa can't be unique in that. Is the law here markedly out of line with international laws?

JONATHAN:

I think, actually, most people would say that the Aliens Control Act - and I think even by its very title and the language that it's using one can see, yes - most persons would say that it is out of line with international standards. Of course, every nation does have to regulate the flow of persons across its borders, but the legal provisions in the Aliens Control Act are recognised as being out of date.

JOHN:

In what way?

JONATHAN:

Well, one way in which they're out of date is simply where they come from. They come from the apartheid era. This is probably the most major piece of legislation that's directly rooted in the racist apartheid regime. So, just simply in the fact that symbolically and historically where they come from, the laws are out of date.

In addition, they're out of date for where South Africa needs to be in terms of its national economy at the moment. That is, as part of a globalising world. South Africa needs to - and I think government policy recognises this - be part of the globalising world in terms of interacting with it, attempting to trade, attempting to - through investments and business - be part of that global economy. But also to internally regulate an attempt to soften the effects of that globalisation and attempt, through development, to actually address some of the disparities within the country. And on both scores the Aliens Control Act does not measure up.

JOHN:

Some of the public unhappiness, perhaps in individual cases but certainly widespread and fairly vocally expressed, has been with the way individuals feel they have been treated, or not very well treated, by the Department of Home Affairs.

JONATHAN:

Yes, stories abound. Certainly... Well, one thing it's fair to say is that the Department of Home Affairs does not receive the resources that certain other Immigration Departments do in other countries. However, that said, it is probably fair to say, I think, that it's the department that attracts the most number of complaints, often related to efficiency - but also related to procedural fairness. Individuals do not feel as if their cases are being treated fairly. And there really are very few safeguards to be able to show them that, even if their cases are being dealt with fairly, that that is the case.

JOHN:

Well, if we just talk about that in the context of the issue of foreign spouses, and whether they may be allowed to live here or not, one of the points of complaint - and I think this was what was behind at least one of the cases that went to the High Court - was that there was a fee being levied or raised by the Department of Home Affairs. It was quite substantial; it was in the order of eight to ten thousand rands.

JONATHAN:

Ja, that's where the point about equity actually within the country comes in. That fee, which was - I think you're correct - at the time that the case was litigated, the fee was around R10 000. One of the issues on which the lawyers who were putting that case forward argued was that it created a disparate impact between poor South Africans and rich South Africans, that essentially one only had a right to live with one's spouse if one was rich. And that obviously is the sort of thing that a Bill of Rights culture in the New South Africa does not want to put up with.

JOHN:

Why should there be a fee levied at all, you might ask.

JONATHAN:

Yes, one could actually ask that. I think it's international best practice to, in fact, engage in some fee for service. I don't think that the principle of looking into fee for service was being questioned but really the amount, in this case.

JOHN:

Is the application of the Act being criticised on the basis that it's unreasonable to look at a marriage and determine whether that is, in fact, a marriage of convenience, simply a way of providing an entry ticket into the country? Is that point an issue?

JONATHAN:

Not really. Everyone agrees that marriage ought to be something that is an institution... There is an interesting issue about same-sex couples, and perhaps we can talk about that as well. But most persons agree that there is an issue of maintaining marriage as a genuine institution.

There is some concern - for instance, the new Draft Immigration Bill - that it allows for the cancellation of a permanent residence permit where a marriage has broken up. For instance, within three years of gaining the permanent residence permit. What that might do is to create a pressure, an incentive, for persons to stay in a marriage - or indeed to allow for one spouse, who may be in an abusive relationship, to have to stay in a marriage. And that's a concern.

JOHN:

And the same-sex couples issue?

JONATHAN:

Ja, the same-sex couples issue is a relatively straightforward equality issue that also went up to the Constitutional Court. The Court essentially said that, if the immigration law was going to offer a benefit to foreign spouses, it needed also to offer a benefit to persons in same-sex life partnerships. And subsequent to that case, which was decided against the Minister of Home Affairs, the Minister has put through regulations that basically say that, if persons are in a same-sex relationship, they have until the 25th of October to apply for these kinds of immigration benefits. And after that time - and indeed for any persons in same-sex relationships who are entering the country - they will be able to apply for benefits on the same basis as heterosexual couples.

JOHN:

And benefits here means...? The granting of a permit?

JONATHAN:

Benefits here means greater access to permanent residence. It does not mean automatic access to permanent residence but greater access, ja. The ability, for instance, to apply within the country as well as outside.

JOHN:

The whole question of permits applies to all sorts of people. I mean, it applies to foreign students, it applies to work seekers, it applies to all sorts of people, doesn't it?

JONATHAN:

Sure. The two general categories are permanent residence permits and temporary residence permits. Although permanent residence permits are now called Immigration Permits.

JOHN:

And the current state of play on the foreign spouses issue is... what?

JONATHAN:

The current state of play on the foreign spouses issues is that a foreign spouse is able to apply for a permanent residence permit from within the country. The reasoning for that was that Parliament had essentially put forward no criteria, no standards, to govern the exercise of discretion by the immigration officer to refuse to issue that permit. So the Constitutional Court said until there were such standards that they would allow for permits to be applied for, except in terms of good cause. And good cause might mean that there is a delay in the application.

JOHN:

Are foreign spouses allowed to apply for work permits?

JONATHAN:

My understanding, based on the Dawood case, is that they are allowed to apply for work permits.

JOHN:

You refer to the Dawood case. I believe this is an important case, not only from the point of view of the Dawood family, but also for lawyers generally? And it goes wider than the immigration law itself.

JONATHAN:

Yes, absolutely. What happened there - partly as I was mentioning before - is that there is a fundamental right, a fundamental right of spouses to live together, part of the right to dignity in the Bill of Rights that was being infringed. Since it was being infringed without specific criteria laid down by Parliament, the Court was pointing out that, to allow that right to be infringed at the discretion of an official - a junior official - would be unconstitutional.

Now that principle, the idea that administrative discretion - executive discretion - cannot infringe upon fundamental rights without clear statutory criteria, that's definitely of applicability beyond the immigration law field. It's something that other government departments will need to be careful about and to look at their laws for as well. What it essentially means is that Parliament must do its job better in terms of actually specifying standards of criteria to drive policy.

JOHN:

But if the Act itself - whatever Act it might be - does not specify the discretionary power granted to the official, isn't it assumed that the official will have a discretion? And because he/she has a discretion, must actually apply sensible criteria to it, even if they aren't spelt out?

JONATHAN:

That would be the case if there weren't a fundamental right that was being infringed upon. Once there is a fundamental right that is being infringed upon then it cannot be limited; one cannot use the limitations clause to justify the action of limitation.

JOHN:

This is SAfm 104-107, radio for the well-informed. This is The Law Report programme and tonight we're talking about immigration law. My guest is Jonathan Klaaren. He's an Associate Professor in the School of Law at Wits University.

If you'd like a copy of this programme on cassette, you can contact RadioPro at telephone number Johannesburg 714-4709. And RadioPro's address is Private Bag X1, Auckland Park, 2006. In a day or two it'll be possible to look at a text transcript of what's been said on tonight's edition of the programme. You can read it by visiting SAfm's homepage on the Internet at: www.safm.co.za.

Now, moving away from the foreign spouses question, what are the other issues to do with immigration law that are really being debated at the moment?

JONATHAN:

In the White Paper and Immigration Bill process I think there are a couple of major issues that are being debated. One is essentially the attitude that South Africa ought to take towards immigration. Most surveys will show that the public is, at a fairly high level, opposed to further immigration. The issue is whether there ought to be, instead of a pure control orientation, whether there ought to actually be facilitation of at least some immigration, in some matters, in order to facilitate growth and development.

So I think really that fundamental issue, that sort of orientation towards immigration, is really up for grabs. In addition, there's a number of new institutions that are being proposed. We've spoken about how the Department of Home Affairs is one of the real leftovers, and one thing that is being talked about in the White Paper in the new Bills is the possibility of new institutions, for instance immigration courts, an immigration service, even an additional professional security service - perhaps something like a border control.

And I think a number of these proposals at least work in an appropriate direction towards modernising the management and administration of immigration, although there really are a number of questions that remain to be worked out.

JOHN:

One's impression is that certain other countries have quite an up-front sort of policy about 'We want to attract people who know about computers' - or engineers, or accountants, or whatever it might be. One doesn't - I suppose possibly because one is within the country rather than outside it - have that sort of perspective on what South Africa's policy is about attracting skills.

JONATHAN:

No. South Africa has really been lagging in this globally competitive market here and I think that's going to be a problem - at least from my point of view. For instance, there's talk about how one attempts to retain skills within the country, possibly even by forbidding people to leave and that sort of thing. There may be incentives that one can offer in order to keep skilled people in the country but I think, really, the strategy that's going to work is to instead be competitive and to actually, in fact, take skilled people from elsewhere, or at least to participate in the movement of skilled people around the world.

JOHN:

A moment ago you referred to the White Paper and, I think, Bills - plural. Why Plural?

JONATHAN:

Well, [LAUGHING] there are a lot of different Drafts. That's one reason for the plural. But I think the story here is just that there is, from the Parliamentary Portfolio Committee, a process of looking at the White Paper, which is stated to be the government's official policy on immigration at the moment. And there is, from the Parliamentary Portfolio Committee's point of view, a process of hearings that's happened around the country over the past month or two, and they are looking into the issue of whether or not they approve that White Paper.

The Minister of Home Affairs, on the other hand, over the past couple of months has been driving a process that's actually moved beyond that and actually gone to the point of an Immigration Bill, and has submitted that to Cabinet. Whether there will, in fact, be plural Bills is, I think, not really clear.

JOHN:

And is your sense that there's some divergence between these two initiatives?

JONATHAN:

Yes, I think definitely. The amount of specific policy divergence is not absolutely clear, although I think one can say that the Minister's Immigration Bill is more business-friendly than labour-friendly, and one would assume that the ANC-driven Parliamentary Portfolio Committee would be at least more willing to listen to Labour's point of view on an important issue such as this.

JOHN:

Well, you referred to surveys a little while ago, and we have seen, haven't we, quite alarming outbreaks of xenophobic behaviour directed towards immigrants, whether they be lawful or unlawful immigrants.

JONATHAN:

Yes. I think we are quite concerned about those kinds of xenophobic attitudes. Xenophobia is and has been part of the Human Rights Commission's concern, along with racism. And, just in terms of specific incidents, there's a recent case in Pretoria where one of our member organisations was thrown off a train by persons in what was a xenophobic attack.

JOHN:

You're talking about the National Consortium on Refugee Affairs?

JONATHAN:

Yes. This is Lawyers for Human Rights, yes. This is in the more narrow field of political refugees, of refugees who are fleeing persecution in their home countries - for instance from Congo or from Somalia or something along those lines. The two types of organisation are organisations who provide services to these refugees, and also those who participate in policy which has resulted in, for instance, South Africa passing its Refugees Bill in 1998, and actually beginning to implement that Bill in April of this year.

I think it's worth pointing out that, in the field of refugees, whilst there are certain issues there, generally it's accepted that South Africa's legislation is quite progressive, and is relatively in line with international best practice. That's not the case in immigration more generally.

JOHN:

And, I take it, it would be true to say that the number of refugees - political refugees - who were favourably processed by the legislation would be relatively small compared with the number of immigrants or aliens?

JONATHAN:

Ja. The question of numbers is quite interesting in itself but certainly you're right on that point. The number of refugees - we're talking about 20 000 or so over 5 years which, you know, at the end of the day is really quite a small number, especially when you consider that Africa as a continent has the highest number of refugees in the world. And when one compares that to any estimate of undocumented migrants, the political refugees are obviously quite a small population.

I suppose probably the smallest estimate I've seen of undocumented migrants is about 500 000 persons. The largest estimates range into 5 million or 8 million but I actually really even hesitate to say those numbers because the methodology on which those surveys and statistics are based are just so clearly flawed.

For instance, just the notion that one could go from 5 million to 8 million when one looks at the surveys, the numbers switched along those lines of 3 million within, say, 6 months. And I think that shows that the statistics they were based on were ultimately very flawed.

JOHN:

Or else it's a matter of 'scare' headlines.

JONATHAN:

Well, I think... I hate to say this on a programme like this but I think the media does share some of the blame. But ultimately, when one goes back to where these statistics come from, it's the methodology of the statistics that is at fault.

Essentially, what happened was that persons were asked how many illegal immigrants they thought were in their neighbourhood, and that's a notoriously inaccurate kind of way of determining numbers. And, as I say, the fact that the estimates fluctuated, you're seeing increases of 900% over 6 months, and then decreases again of 900% over the next 6 months, shows that those numbers aren't very good.

JOHN:

Yes, it sounds like a way of settling scores, too... I mean, you know, illegal immigrants, have you seen...? You know, that kind of thing.

JONATHAN:

Don't get personal. [LAUGHINGLY]

JOHN:

[WITH A LAUGH] No, all right. For the sake of illustration only. Now, you mentioned the question of measures being perhaps business-friendly or labour-friendly, depending on where the measures were coming from. Is there much imported labour into the country at the moment? A lot of labour came to the mines, historically, from outside the country's borders. Is that still the case?

JONATHAN:

Well, there are other persons who are more expert on this, but certainly it's true that there used to be quite a number. Then for a while the percentage of foreign workers on the mines was really decreasing. However, the interesting thing, as I understand it, is that over about the last 4 to 5 years that's actually been increasing again. And, in fact, I believe the figure is somewhere around 60% at the moment.

JOHN:

Yes, I was just wondering whether, in framing whatever reform of the immigration laws will emerge from all this, considerations like obligations to the Southern African Development Community and fellow member states will play apart in it all.

JONATHAN:

I think it should play a part in it all; it's not clear exactly how it is playing a part. One of the concerns with the Immigration Bill that the Minister has been working on is that would apparently allow for the perpetuation of essentially the migrant labour system with respect to regional member states. Those relationships are built around bilateral treaties that allow, for instance, for compulsory deferred pay and special treatment for farms and for the mining sector. And that appears to be something that is not being challenged or being changed.

In some ways, it's fair to say that the competing models for immigration management and administration have actually been wider than SADC. The American model is the one that, in some senses, is actually driving this process at the moment. Although earlier on - and I should say that this policy debate has been going on for much more than just one or two years - earlier on, say about 3 or 4 years ago, the Canadian model of immigration management was more dominant.

The Canadian model, for instance, is very friendly to skilled migrants. It has a points system. It allows persons to basically be able to tell whether or not they'd be allowed into Canada by judging themselves on a points scale. The American model is not quite so up-front in that way; it's built more on a border control strategy and, indeed, as that model's been adapted in South Africa, it comes out more to a sort of community policing and services control model.

JOHN:

Community policing?

JONATHAN:

Ja. This is what I actually think is probably the most disturbing theme in the Immigration Bill and actually the White Paper as well. The essential idea of the White Paper is that, in moving away from defending the border, so not only defending the actual borders of the country but to have instead internal enforcement, and that that would be a task that the general police would continue to fulfil, and it's one that they would actually involve the community within. So it's actually inviting police persons to, for instance, hold community forums in order to try to detect and to prevent the movement of undocumented persons.

I think it's not a very great leap from community policing to xenophobic attacks and vigilantism. And I think the concern, certainly of my organisation but also the South African Human Rights Commission, has been that this kind of policy will increase levels of xenophobia and lead to violence against, I should say, not only non-citizens but also citizens. Because there's a real overlap, often, between citizens - particularly those of a particular colour - and non-citizens.

JOHN:

People are not judged on whatever papers they're carrying or not carrying, often, but judged on their physical appearance?

JONATHAN:

Right. And, just to talk about those papers for a moment, part of what the White Paper and Immigration Bill talks about is the necessity to essentially carry those papers around all the time. And indeed the Immigration Service, the new organ that would be essentially replacing the Department of Home Affairs, or carved out of the Department of Home Affairs in relation to this function, would be able to determine, to say to other government departments, 'Require these papers before this service is given or not.'

Now, what that's going to do is, by actually requiring these kinds of documents, it's not exactly a client-friendly, customer driven kind of approach, and I think one of the concerns is that citizens will actually suffer as well as non-citizens, in the kinds of inefficiencies and blockages that are likely to result from this kind of close policing of public services.


JOHN:

Lastly, have you any sense on the time frame before new legislation does actually get enacted?

JONATHAN:

It's a question that I think is really up in the air. There certainly is talk that it'll happen before the end of the year. My bet is 2001.

JOHN:

Jonathan Klaaren is an Associate Professor in the School of Law at the University of the Witwatersrand in Johannesburg, where he teaches Constitutional and Administrative Law. He's also on the Executive Committee of the National Consortium on Refugee Affairs. My thanks to him for his time and his expertise in taking us through tonight's subject.


TRANSCRIBER'S NOTE:

Apologies for any names that might have been misspelled but working from an audio cassette one does not have reference to the printed word and it is possible that errors might therefore occur.


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