Honourable Minister, Ladies and Gentlemen. I am honoured to be invited to share my thoughts with you on the subject of regulating migration in the 21st Century. Although I speak as a Canadian academic, my reflections are based not so much on familiarity with Canada’s immigration system but on over two decades of research and thinking about these issues in the Southern African context.
Most of my remarks are designed to be of relevance to the current discussion on the South African White Paper on International Migration and the new Draft Immigration Bill, the subject of this particular conference hosted by the Department of Home Affairs. The Southern African Migration Project (SAMP), which I direct, has undertaken an exhaustive analysis of both of these documents which is available for consultation. Here I will necessarily be more succinct.
Let me begin with three introductory notes of commendation. First, South African immigration policy continues to be governed by the apartheid-era Aliens Control Act. Implicit in the gazetting of a new Immigration Bill in February 2000 is the belief that the Aliens Control Act is an unacceptable instrument for the sound and effective management of migration in the 2lst century. The rescinding of the Aliens Act and its replacement by a new Immigration Act is therefore a matter of highest priority. However, it is equally important that such legislation is not rushed; that it is constitutionally-sound, implementable and cost-effective. In this context, the present public consultation with a wide variety of local and international experts and interest groups is to be welcomed.
Second, the White Paper suggests, in Sections 29(1)(a) and (e), that it is the Department’s intention “to promote a human-rights culture in both government and civil society in respect of immigration control” and to “prevent and deter xenophobia” within its own ranks. The language used within legislation is both a marker and a measure of the seriousness of this intention. The drafters of the new Bill are to be commended for abandoning some of the provocative, misleading and inflammatory language of the Aliens Control Act and current public discourse about immigration. The continued and repetitive use of the term “foreigner” in the Bill is still suggestive of a siege mentality which views all non-citizens and non-residents as a potential threat. A better descriptor would be “foreign national”, “foreign subject” or “non-citizen”. In addition, illegality should be tied to residence not identity. Hence, the term “illegal or unauthorized resident” might be substituted for “illegal foreigner.”
Third, while my remarks may seem critical of the new legislation, they are offered in a constructive spirit. Indeed, there are many positive elements in the new Bill which make it far superior to the existing legislation.
Most countries, South Africa included, are profoundly ambiguous about the use of immigration policy as a tool of economic and social development. Immigration, no matter how selective and tightly controlled, arouses nationalist passions and causes moral panics. Governments are supposed to protect citizens from “outsiders”; not let them in to compete with locals for jobs and resources.
Even the most liberal immigration countries have strong and vigorous anti-immigration lobbies. In fact, if immigration policy was driven purely by the wishes of citizens, there would be very little legal immigration in the modem world. Why then do governments so often go against the popular will and their own constituencies in encouraging immigration? Presuming that they are not acting totally irrationally, they appear to believe that immigration and the interests of citizens are not always completely incompatible.
I would like to suggest that there are four main obstacles that need to be overcome before South Africans can craft a new policy framework that is adequate to the challenges of managing and benefiting from migration in the 21st Century.
First, the past has to be left behind. While policy-making tends to be forward looking it remains true that the invisible shackles of the past can severely constrain the development of workable policies. This is true of immigration policy. I am not referring here simply to the fact that the Aliens Control Act is still in place. What I mean, at a more general level, is that South Africa is hampered by a very clouded and unsavoury immigration history. Before 1994, immigration policy was a naked instrument of racial domination. Before 1948, successive governments recruited British settlers and discouraged Jewish immigration. The Aliens Control Act can be traced directly to the rampant racism and anti-Semitism of the 1930s.
In the 1960s and 1970s, the National Party government encouraged Dutch and German protestant immigration and discouraged Catholics. White Portuguese settlers fleeing Frelimo rule in Mozambique were welcomed in South Africa with open arms. Black Mozambicans fleeing the brutal war bankrolled by South Africa were met with electrified fences. In fact, until 1991, the official definition of an immigrant was that he or she (usually he) had to be “assimilable” by the white population. By definition, Africans could not be immigrants.
Every time that there has been a sea-change in South African politics in the past, the immigration shutters have gone up. In 1910 (at Union), in 1948 (with the coming of apartheid), in 1963 (when South Africa became a Republic), the first impulse of the new state was always antiimmigrationist. Nation-building went hand in hand with the exclusion of non-citizens and even active hostility to immigration. In time however, the opposition to immigration and immigrants softened and the advantages of immigration were stressed.
While it would be invidious to compare South Africa’s first democratic order with its nondemocratic predecessors, there is always a present danger that the dangerous equation that nation-building equals no immigration will be unquestioned and allowed to dictate policy.
The second major obstacle is what I will call the information deficit. In the immigration area, there is a distinct danger of governance by stereotype and misinformation. The SAMP project has now conducted 4 years of rigorous research on the dimensions and impacts of migration research. The products are widely disseminated but I note something of a tendency to listen to the research findings and recommendations primarily when they do not challenge stereotypes.
The classic example here is the issue of how many undocumented migrants (or illegal immigrants) are in SA. For much of the late 1 990s, the figure of 4-6 million was commonly cited. The White Paper cites a figure of 4 million. Recently some officials and MP’s have been publically saying 8 million. All of these figures can actually be traced back to a study done by the HSCR in the mid-1990s. With no disrespect intended to the HSRC or the researchers (who thought they had come up with a viable method), the study is completely worthless.
The study involved asking a random sample of South Africans how many non-citizens lived in the area around where they lived. The numbers were then multiplied out to give figures in the millions. There are various problematic assumptions in such a methodology which we could discuss. But the best way to see its absurdity is to examine the results over time, since the HSRC did the same survey every 6 months. In December 1994, for example, the figure was 5.1 million; in June 1995, 9.1 million and in March 1996, 4.7 million. I saw no reports of “aliens” flooding out of South Africa in their millions between June 1995 and March 1996! Even more bizarre results were obtained at the provincial level. In the Free State for example the figures supposedly dropped from 1 million to only 6,800 in a 9 month period. Other provinces showed similarly unrealistic results.
What is striking about the White Paper is its emphasis on control, on keeping people out, on removing those who South Africans don’t want. The White Paper has been criticized for missing an opportunity to initiate a public debate on the possible benefits for South Africa of legal immigration, and for encouraging South African citizens to take up an anti-immigrationist stance. The White Paper does, however, recognise the virtues of greater freedom of temporary residence and work in South Africa; and for that the drafters should be commended.
If SA officially overcounts the extent of illegal immigration, it also seriously undercounts legal emigration (the so-called brain drain). A recent study by UCT comparing South African emigration statistics with those of the 5 major recipient countries showed that brian drain was being undercounted by as much as two-thirds.
I give these examples simply to illustrate my point that either of these gross inaccuracies can lead to erroneous conclusions and misleading or unhelpful policy positions.
South African immigration and migration policies need to be based on the soundest, most reliable information. South Africa, like other immigration countries, needs to develop a sound and reliable official capacity for systematic data collection and analysis.
A third obstacle is the failure to really think through what SA’s regional commitments actually are. Globally, the trend of the 2lst century will be the regionalization of immigration and migration regimes. The White paper lays out as one of its defining principles, the idea that SA’s obligations and responsibilities to its SADC neighbours should take pre-eminence in immigration policy. But one searches in vain in the substance of the White Paper to see how this is operationalized. And indeed it appears that SADC countries will be treated exactly the same as everyone else. The Immigration Bill is no more enlightening on this score.
However, it is worth pausing for a moment to consider one clause in the Bill. After laying out in considerable detail the new corporate work permit scheme, Section 16 of the Bill notes that certain employers can be exempted from the proposed scheme proposed for all other employers. This exemption clause, clearly intended for the mining industry, potentially entrenches the much-criticized bilateral contract labour agreements, allows them to potentially employ a “wholly” foreign workforce and permits compulsory deferred pay.
None of this is proposed or sanctioned in the White Paper. In effect, the clause would mean business as usual and the continuation of the mining industry’s special status as an employer free to employ non-South Africans at will. I would strongly recommend that this governance by exemption be revisited. Quite apart from the question of whether the government wishes to perpetuate the migrant labour system, there is a strong legal and constitutional case that all employers should be subject to the same regulations. Either the mining industry should be subject to the new corporate permits scheme or other employers should be given the same extra privileges as the mines.
A fourth and final obstacle can be a lack of appreciation of new global forces and opportunities. South Africa is clearly shedding skills at an alarming rate to its global competitors. These countries have no compunction about creaming off the most skilled people because they believe and have proven that it is in their own national interest to do so. Why should South Africa be that different? Why should this country not also gain massive value from a selective immigration policy that targets the brightest and best of other countries?
One legitimate fear, of course, is that this would simply be a recipe for renewed European immigration. However, the facts show that the majority of immigrants to the western immigrant recruiting nations are no longer from Europe. These countries are drawing skills globally, including from Africa, Asia and Latin America. Perhaps South Africans would feel morally queasy about robbing other developing countries. The point is that these are people in those countries who are looking to leave anyway. If South Africa is not one of the options, they will just go elsewhere.
I raise these issues not as prescriptions for immigration but as an invitation to debate. What is needed is an open public and official discussion about the actual pros and cons of immigration and its advantages and disadvantages for South Africa and South Africans. Nation-building and immigration are not mutually incompatible. In some circumstances, they may actually be mutually reinforcing.
Uncontrolled immigration is in no-one’s best interests. But a selective immigration policy could be critical in offsetting the brain drain and injecting new ideas, innovations and energies into the country. Without such a debate, insularity and exclusive nationalism will win the day. This will not be in the best interests of South Africans. This Conference provides an excellent opportunity for these issues to be raised and publicly debated.
Thank you, once again, for this opportunity to contribute to the debate on reformulating South African immigration policy.