This conference is the culmination of a long process of policy formulation which began almost four years ago when I appointed a Task Team to research policy issues and options relating to migration and to draft a Green Paper. This has been one of the most extensive processes of policy formulation of the new South Africa and has encompassed a larger than usual number of opportunities for public comment. We solicited public input before the drafting of the Green Paper and after its publication, which was followed by a consultative conference. We had two equally highly qualified but different teams drafting the Green and White Papers, while the presence of Professor Wilmot Hames and some government officials, ensure continuity of thought and perspective. The White Paper was drafted on the basis of both public input and public hearing held in all nine provinces.
The White Paper itself was widely discussed in Cabinet and some of my colleagues requested amendment prior to its approval and publication. In order to maximise public debate we did not draft a Bill to accompany the White Paper, as most of the other departments have done in respect of their legislative reforms. After the publication of the White Paper we solicited additional comments to fine-tune our reflections as we drafted the legislation required to implement the new policy. These comments pointed out additional concerns in areas to be explored, reconsidered or expanded upon further. some comments were also based on wrong assumptions about the intentions of the White Paper, or the misunderstanding of its contents. For this reason, instead of drafting a Bill and bringing it straight to Cabinet for its consideration and approval, we sought to interpose an additional stage of consultation by publishing for comment a draft Bill on February 15 this year.
Reflecting on the public inputs received, the draft Immigration Bill departed in some respects from some of the suggestions contained in the White Paper. It also clearly showed that some of the assumptions made in the debate surrounding the White Paper about our legislative intentions were indeed wrong. The Bill itself attracted wide-ranging public comment, which has prompted a new version to be prepared for this further stage of consultation and debate. Discussions have also taken place with NEDLAC, which even though mainly focused on the White Paper, have nevertheless prompted us the make further corrections to our Bill. The version of the Bill now presented to this Conference is still a working document because it has not been submitted to the Cabinet.
This process of policy formulation has been longer, and has included more stages, than those underpinning enormously important legislative reforms adopted by our Government in fields such as health, education, welfare, housing or justice. These considerations denote an important dilemma which characterises migration control. While in other fields there has been more immediate clarity on the way forward, almost a political instinct guiding our Government as a whole, it was soon realised that migration control is a difficult and multi-facted issue which easily lends itself to controversy and seldom offers consensus-based solutions. Right and wrong are often a matter of perspective, and the role of government today in respect of migration control has far outrgrown its original roots, when the first immigration officers were posted at the gates of a walled city to ensure that the only foreigners allowed in were those accepted by the sovereign. Government is undoubtedly seeking a new role.
There is general agreement that migration control must work effectively and efficiently. Moreover, it must be structured so as to ensure that it does not become a hindrance to satisfying to needs which our own nationals require, or merely enjoying foreigners in our midst on a temporary or permanent basis as workers, family members, tourists, traders or business associates. We must also consider the international dimension based on the reciprocal treatment by foreign countries of our nationals for the benefits we extend to their nationals. There is a consensus that the migration system has to be effective in keeping out the foreigners we do not want and deporting those who are in the country illegally.
There is also a consensus that the migration systems must pose no obstacles to the expedited entrance and sojourn of those foreigners whom we want. However, that is where the consensus often stops and it becomes difficult to engage analytical debate on crucial issues such as how do we determine the foreigners we need or want, and whose volition or need becomes relevant? The state's or the individual's? In either case, is the State to make such determinations, or should the State merely register the determinations made by our nationals and the institutions of civil society which they establish for their organised socio-economic life?
Countries have rarely had the opportunity to focus on these policy questions from an entirely new perspective. Generally, many countries have not become the target of migratory flows almost overnight. Countries which have attracted large flows of foreigners, either on a temporary or permanent basis, have developed their own migration systems incrementally or through ad hoc adjustments, often from an original mould set in place in the 19th century or the first half of the 20th century. It is significant that in many countries with established democracies which have become the recipient of large migratory flows, there are a few publications dedicated to the actual process of policy formulation in migration. One can find books describing policy debates about most of their other line functions but, for instance, little else is written about the policy reasons underlining the choice of the points system utilised to select permanent immigrants, or the quotas and related classifications employed to determine how many temporary foreigners are enough.
Similarly, there has been little debate about the real effectiveness of the actual instruments employed by Government to assess the "need" that certain foreigners become members of our communities, such as the labour certification and the advertisement utilised to screen those who may receive a work permit. This lack of widespread detailed debate is somehow uncharacteristic even in countries where the issues relating to foreigners are highly visible and often become politically inflamed. It seems that migration control is something which like waste removal, people expect to be done right and effectively, but they do not wish to be involved in discussion about how it is best done. South Africa has had the benefit of taking a new and fresh look at these issues and we believe that to a certain extent our experience in this respect is unique.
We have to ask ourselves questions for which there are often no answers, such as the relationship between rigidity and flexibility to be built into a system which satisfies both the present and the future needs of our nationals while providing certainty. We had to consider conflicting interests and try to establish venues and procedures to reconcile them. In doing so, we are proud to present a product which has taken into account the experience of many other countries, but which in fact resembles nothing previously adopted. In international conferences such as this one, there is always the temptation to compare what has been proposed with that which is known, tried and tested. However, we have noticed that the actual test of many migration systems, is not as much in respect of what has been, but rather in what is to come, which may require a new theoretical and conceptual framework.
In all likelihood one of the main subjects requring theoretical development in the 21st century will be systems regulating the international migration of people. In other respects, such as human rights protection, constitutional law and the institutions of democracy, the 19th and 20th century have developed a vast inventory of ideas, concepts and techniques. However, what is to be experienced in the 21st century in respect of migration still remains unprecedented. The new century will undoubtedly be characterised by an unprecedented ease of movement of people across international boundary lines and by the proliferation of cultural, social and economic exchanges within the global village. Reasons for the migration of people within the global village will be strengthened by existing and ever-increasing social disparities between world segments which are technologically advanced, and those which remain technologically undeveloped, between those who are rich and those who are poor, between those which are democratically developed and those where democracy remains weak, and between those which are environmentally sound and those which remain polluted.
In rethinking a new migration system for a new South Africa, we had to take cognisance of these future developments, while dealing with the legacy of the past. In the past the Department of Home Affairs had wide-ranging powers of policy formulation and acted in terms of loose legislation which granted it broad discretionary powers. Accordingly, its decisions effectively formulated policies in respect of labour education, tourism, foreign investments and even foreign policy and other aspects affected by social and economic exchanges. Our starting point has been that of ensuring that the future of migration control is based on objective criteria and procedures which eliminated discretion or arbitrary powers. Migration control must register the policies developed by other line functions such as labour, education, foreign affairs and tourism, not formulate them. For this reason, the White Paper on our draft Immigration Bill utilises techniques which enable the new South African Immigration Service to verify that the relevant policy and legislative requirements are respected withing the issuance of a temporary residence permit.
For instance, the South African Immigration Service, which henceforth I shall refer to by the acronym of SAIS, will not be determined by how many foreigners can study in our primary schools, universities or technikons. This matter will need to be dealt with by the Department of Education and determined in their overall education policies. Generally speaking, the Department of Education will determine the criteria for admission of foreigners to our schools, with the exception of learners who are dependents of foreigners with work permits. The SAIS will issue permits to foreigners admitted to schools in terms of education policies. Similarily, it will not be for the SAIS to determine the conditions for admission of foreigners in our public hospitals for long-term treatment, which is a policy matter relating to the administration of hospitals. By the same token, SAIS will not dictate the terms and conditions applicable to foreigners who are working in the country. This matter will be the perogative of the Department of Labour. The procedures for the issuance of permits will be limited to verifiying that foreigners are employed under the same terms and conditions as our nationals, as determined by the Department of Labour. However our legislations will create the opportunity and incentives for these issues to be analyzed and the relevant decisions made.
Our new policy and legislation accept that migration control cannot be cast in stone when the new law is enacted. The migration policy must reflect the changing needs of a rapidly changing society. We have considered the legislation of other countries where the migration system is almost entirely set out in, and driven by, legislation. We come from a background where our migration system was set out partially in legislation and partially in lengthy policy documents which, until recently, were not even made public, even though they contained the actual requirements for the issuance of permits. The new policy provides a legislative framework which determines how further stages of policy formulation will take plave through regulation. Policy formulation will not stop with the adoption of the Immigration Bill, but will continue to ensure that at any given time, regulations reflect the need for keeping the migration door more or less ajar, so as to provide the full measure of satisfaction to the conflicting needs of our society.
Taking cognisance of the need to reconcile conflicting needs within each stage of further policy formulation, our new policy envisages the establishment of the SAIS as a regulatory agency where policy formulation takes place by an Immigration Board. The purpose of regulations will not be exclusively that of implementing a law but will also perform the function of adjusting policies to the needs of the time. For this reason, regulations will not be issued by the Minister, as is customarily done, but they will be the outcome of a process based on public participation. The Board will need to give notice of its intention to issue regulations to solicit public comments. Having received public comments, the Board will issue draft regulations which will attract additional comments. The final regulations may be challenged in a court of law if, on the basis of public inputs received, they appear to be arbitrary or capricious. This process will ensure that future decisions reflect the need for reaching social consensus. For this reason, the composition of the Board itself reflects the institutional expression of vested interests within sociey, either in the form of government departments or private institutions.
The mechanisms envisaged in our policy and draft legislation are tailored to ensuring that the needs of our nationals are satisfied. This mutating needs to change the output of migration control. However what should remain constant is the measure of satisfaction which we intend to deliver to our nationals. In order to do so, our policy does not intend to substitute a decision or evaluation of government with the decision of the affected parties and interests. One of the crucial aspects of this debate relates to foreign workers. There is consensus that we should allow as many foreign workers as are needed to support our economic growth and future prosperity. However, it is becoming increasingly more difficult to set criteria on which to base a determination on whether one specific application for a work permit is indeed needed for that purpose. The determination of such need is pivotal to the issuance of work permits, and yet it remains one of the most uncertain, discretionary and often arbitrary decisions.
The complicate this determination is the fact that the classification of qualifications or skills is becoming increasingly uncertain in rapidly changing labour market conditions and requirements. For instance, computer experts, who are in great demand internationally, often do not have academic qualifications or professional certifications. This would leave government with the impossible task of evaluating experience to determine their suitability for the job for which they are applying. Similarly, managerial positions are often filled by people with qualifications in fields as disparate as engineering or philosophy. We are aware that in the final analysis the employer remains the most capable entity in determining whether someone is suitable to fill a vacant job opportunity. However, we cannot have a policy in which a job opportunity can equally be filled by a foreigner or a national with no need-based screening mechanism whatsoever. It would be untenable if foreigners had exactly the same access as our nationals to our scarce job opportunities, and stood on the same level as our nationals before the decision-making process of a potential employer.
There must be a connection between a special need and the employment of a foreigner. How do we capture, evaluate and monitor over time the existence of this need? The requirement of advertising the position to determine that no national is willing to take it up, is often satisfied in a perfunctory fashion and often ends up being a paperwork exercise to justify an already made decision. In any case, this practice attests to a specific point in time, which does not necessarily show the persisting need for a foreigner to be employed here. It was suggested that government may determine on an aggregate basis what type of people our country needs in order to prosper. However such determination is contradicted on every occasion in which someone is willing to go the extra mile to acquire foreign skills and labour, beyond what has been planned by government.
The system introduced in our new policy is one that shifts the burden from government to the potential employer. We have created a flexible system in which anyone can employ as many foreigners as they really need, and for as long as they really need them. The existence of such need is proven in a tangible and uncontroversial manner by paying a small licence fee for the privilege of employing such foreigners. This licence fee will be a low percentage of the foreigner’s salary which will be utilised to train South Africans. In this way a firm connection is established between the employment of foreigners and the uplifting and training of our own people. Every foreigner working in South Africa will be contributing towards the training of our people and the reduction of the need which justifies the employment of foreigners. We are committed to maintaining licence fees for the acquisition of foreigners at a level which does not prevent the full measure of satisfaction of the needs of our economy. The purpose of the licence is not that of penalising employers and foreigners, but rather that of ensuring that an actual need exists. It must also be kept in mind that the licence fee is determined by the Immigration Board, through the process of policy formulation which was discussed earlier, which has the built-in guarantees that decisions contravening the objectives for which the SAIS was established, may be set aside.
There has been a great deal of debate about this licensing fee for foreigners. The argument has been advanced that it may discourage foreign investments or push some marginal industries which are labour intensive and heavily reliant on foreigners, such as our mining industry, beyond the edge. Once again, our new policy aims at avoiding that the SAIS decides on matters of this nature, and the Bill provides that when such problems and concerns exist, it will be the responsibility of the Department of Trade and Industry to request SAIS to waive the licence fee in respect of certain foreign investments, certain businesses or even entire segments of an industry. The most innovative aspect of our policy and legislation is the provision for a corporate permit, in which the issuance of work permits is administered by a corporate applicant, within prescribed limits and parameters.
This approach reflects one of the main thrusts of our new policy which is that of mainstreaming the documentation of foreigners by expediting the issuance of permits, by reducing discretionary powers and reinforcing objective criteria. Once the criteria are objective, simple and easily verifiable, then reviewing a work permit application becomes easier and can be conducted by lower ranking officials, as well as by reliable corporate entities acting under the strict supervision of the SAIS. After all, it is often simpler to supervise another entity than it is to monitor one’s own peripheral offices, and centralisation is no answer to this dilemma. There is no reason to believe that the personnel office of a reliable organisation would perform this task in a less reliable fashion than a regional office of the SAIS. It must also be pointed out that contrary to common perceptions, the corporate permit is not only available for business entities but also for large organisations of civil society, including charities.
I also wish to stress that the licence fee does not apply in respect of new classes of foreigners identified in our legislation. We have created a class for people of exceptional skills and qualifications whose presence in the country is deemed to enrich our pool of human resources. Moreover, the Department of Trade and Industry and the Department of Labour, may reach an agreement that a certain number of foreigners with specific skills or qualifications are necessary for our economic growth or for specific industries, say nuclear scientists or computer programmers. In this case, the SAIS would be required to issue permits to such qualified individuals within the prescribed cap but without the requirement of a prior job offer or the payment of the licensing fee to which I referred earlier.
The new policy and legislation utilises the same approach in respect of other classes of temporary residents permits. Our intention is to rely on the assessment of the other organs of the State which carry the line function responsibility. Accordingly, permits for students, diplomatic personnel and for medical treatment are dealt with by relying on the direct participation of the relevant organs of the State or private institutions. Once again, the simplification of permit criteria and procedures will enable the SAIS to legitimately rely on the participation of the relevant role-players in the issuance of permits. The new policy legislation also creates certain, predictable and objective criteria for the acquisition of permanent residence. The most important of them is the possibility of acquiring permanent residency through working in South Africa for five years, and by contributing for that period to the training and upliftment of our people by means of the licence fee.
The simplification of procedures and permit criteria will also enable us to bring about a significant restructuring in our migration function, to devolve administrative capacity downwards together with decision-making powers. Our new policy and draft legislation will restructure the SAIS so that it can operate through its regional directorate. It will also make the regional directorates responsible and accountable for the decisions they take, requiring them to defend their decisions if challenged before a court of law, which will induce better decision-making and compliance with administrative procedures. Regional directorates with permit issuing capacity will be re-established both in South Africa and abroad. In this scheme the headquarters of the SAIS will become a centre of policy formulation, monitoring, training and capacity building. It will be the responsibility of the headquarters to monitor the uniform application of our laws and policies throughout all the directorates, build capacity where required and take corrective measures when necessary.
In itself this administrative restructuring is one of the most important and noteworthy features of our overall legislative and policy reform. It sets in place a slightly new model of administrative structure which is made possible because the SAIS is established as a statutory body. This restructuring charters the course ahead for further stages of restructuring that the whole Department of Home Affairs will need to undertake. To signify better what I mean, I can point out how saddening it is to see my top officials, who are men and women of great intellect and capacity, spending most of their time reviewing permit applications rather than applying their minds on how to manage our structures and the overall system of migration control.
The main focus of our new policy is that of reducing paperwork to increase effectiveness. In the past, we spent most of our resources on dealing with foreigners who were within the system, while we remained impotent in respect of those who were illegally in the country and who remained outside the system. By making permit procedures objective and simple, we shall increase the number of people who register within the system and free the necessary capacity and resources to enforce migration law within society. The SAIS will be inspecting specific places and facilities within our communities to ensure that migration laws are enforced. In this respect, I need to point out that some language in the White Paper caused some confusion, which prompted an unnecessary critical debate. While talking about law enforcement at community level, on two occasions the White Paper used the terminological short-cut of “community enforcement”, which some readers suggested would call for communities to enforce the law or even be sanctioned or punished for the presence of aliens. Nothing could have been further away from our intention. There cannot be such a thing as community enforcement, for law enforcement is the exclusive prerogative of the State. The White Paper merely suggested that migration laws must be enforced in the same way as other laws.
The White Paper merely suggested what has been done in many other countries and which we have never had the capacity or resources to do, namely that work-places and educational institutions be inspected. In this respect, I must stress a fundamental shift of emphasis within our new policy. We have liberalised the access of foreigners to South Africa provided that they register within the system so that we can keep track of them. We have created a general entry permit which no longer distinguishes between tourists, businessmen and other types of visitors who do not intend to work. We have also narrowed the legal definition of working activities so that a broader range of activities fall within the scope of the general entry permit. This more liberal approach undoubtedly reflects the demands of the 21st century. Accordingly, for all purposes, including law enforcement, we are looking at a future South African landscape in which there will be a large number of foreigners within our midst. Our law enforcement concern will not target the mere presence of foreigners. We will be less concerned about foreigners being here, but much more concerned about what they are doing here. Therefore, law enforcement will not be about stopping people in the streets to check their nationality, but rather to inspect records and work-places to ensure that those activities and opportunities which are reserved for South Africans, are not taken up by foreigners. This is a fundamental shift of emphasis which adjusts to the new landscape of migration which we envisage developing in the 21st century, where territorial presence will become increasingly less important, while activities will become increasingly more important. It stands to reason that social control in the future should limit itself to controlling activities rather than people.
The important thing is to ensure that foreigners are registered within our system and that we have the capacity to verify that their activities in South Africa comply with the conditions of their permit. The research conducted during the drafting of the Green and White Papers has shown that even countries with vast resources and much shorter boundary lines, have failed to prevent foreigners, not only from entering illegally, but also from working illegally. It seems that such failure has been caused by greater resources being allocated to border control rather than to actual enforcement at community level, so that once a foreigner is illegally in the country he or she can often work illegally without reasonable apprehension of being caught.
However, our new policy also strengthens border control. We are aware that our 7,000 miles of land border makes our frontier very porous. Nevertheless, we should not give up on a task merely because we cannot succeed in performing it to full satisfaction. However, we must realise that border control in the 21st century has changed dramatically. Borders are no longer controlled to detect and repel an invading foreign army, but should be patrolled to ensure that foreign persons and goods do not enter the country in violation of our laws and without being duly registered. New types of equipment, trained personnel and investigating capacity are required for border control in the 21st century. The SAIS will need to understand the dynamics of the organised illegal smuggling of aliens, as well as those underlying individual attempts to enter the country illegally. It will also need to become familiar with techniques used to smuggle goods and contraband, if it is to exercise functions in this respect delegated by the Department of Finance. As envisaged in our policy and draft legislation, this requires a new security service with specialised knowledge, skills and equipment.
In meeting the challenges of the 21st century the SAIS will need to adjust to an environment in which any breach of the law becomes more complex and sophisticated, while the constitutional and legal guarantees become more rigid. For this reason, new law intends to bring procedures dealing with foreigners into full compliance with the constitution and the highest international standards. It provides for judicial intervention when constitutionally protected rights are adversely affected, and for the administrative review of decisions by the SAIS. The introduction of greater legal and judicial guarantees within the process of administration of migration laws, undoubtedly creates an additional burden, albeit a necessary one. To cope with this additional burden our new policy envisages the establishment of specialised courts. The concern has been expressed that these courts may unnecessarily multiply judicial services. In fact, that is not the case, because the number of cases to be heard, judges’ hours to be employed and court rooms to be used, are not multiplied, while with specialisation each case can be heard and decided upon faster. One could compare these courts to more sophisticated traffic courts in which, in effect, properly trained immigration officials may present their cases under the supervision of a dedicated prosecutor.
The new policy and legislation seeks to serve our people in their needs by delivering to them the relevant services at a faster rate and in a manner more conducive to providing them with what they want. In our field, we regard both our nationals and all the foreigners whom our laws authorise to enter our country and contribute to our economy or participate in our society, as our most immediate customers whom we must serve to the best of our capacity. In this context special attention is being given in a new Bill to various classes of people who may require or benefit from foreigners. The most important is the class of people who seek family reunification, and we intend to ensure that our laws do not divide spouses or members of an immediate family. We will not allow the law to break down family ties or interfere with people’s emotional and sentimental lives. In this context, we have considered the new type of families which are emerging within the rapidly changing texture of our society.
Throughout the world, migration is going to be one of the most difficult issues of this century of globalization and rapid movement of people. No country will be able to design a system of immigration control in isolation. We are pleased that discussions on migration control in this century have fortuitously commenced from South Africa this year. We hope to give a contribution to the debate in the world, while finalising a system of migration which meets the needs and aspirations of our people. We know that South Africa will remain the target of migration flows and indeed we hope it to be so, for it is from the socio-economic success of South Africa that an ever- increasing number of cultural and economic exchanges will occur. We know that the challenges of today are going to be multiplied in the years to come and we are aiming at designing a system of migration control, not only for today’s needs, but also for those of the future. We must ensure that migration control serves a South Africa dedicated to its success and in no way hinders its growth and prosperity, which are the values to which I have dedicated my life in commitment to the service of the people.
In conclusion, I wish to present to this conference the notion that the reform of the migration system has several interlocking components which are part of an integral issue. We are trying to find ways and means to do things better, faster and more effectively. We wish to reform administrative structures to gear them up to this task, and to change our administrative procedures to create a healthy relationship between government, its customers and the vested interests in our society. This vision is part of the commitment of our government to transform South Africa into an ever better country. Nowadays, the only constant in our country is that change will continue and we must explore new ways to direct change towards the betterment of our government.
I wish all the delegates and participants to this conference serenity of discussions and fruitful deliberations. We have structured this conference so as to enable the maximum degree of open discussions. This conference has gathered together most of those who have made contributions to the process of policy formulation, even ordinary citizens who responded to the civic duty to input their comments. We have experts here and people who care. We felt that the purpose of this conference is that of listening while engaging participants in discussions on the basis of the challenges which we believe our new policy and draft legislation poses for our own thinking. This conference has been a hard one to organise and we encountered unexpected difficulties. However, I am delighted that it finally took off and I hope that we will all work together to make it the success it deserves to be. I wish to extend a special word of thanks and sincere appreciation to the sponsors of this conference, especially the Anglo American Corporation, which has been our main sponsor and whose generosity has made it possible for us to be here today. I also wish to thank the Speaker of Parliament and the Chairperson of the Portfolio Committee on Home Affairs for having enabled us to use this historical chamber, once it became obvious that the many responses we received made the original venue of this Conference inadequate. I also wish to thank the many NGOs which have contributed thought and effort towards the making of this policy, such as IDASA, the CDE and COSATU. Most of all I wish to thank the many officials of my Department who have endured through a difficult process of transformation, often characterised by conflicting currents and under-currents. I want them to be reassured that we are on course towards the making of a new immigration system in which they can rightly take pride.
I thank you.