Speech By The Minister Of Home Affairs, MS N.N. Mapisa-Nqakula, MP, Introducing The Immigration Amendment Bill, 2004, to the National Assembly On 19 August 2004.
The President of the Republic of South Africa, in his State of the Nation Address at the opening of the third democratic Parliament, committed government to finalising the Immigration Regulations within three months. However, it soon became clear as we started this process that it was not going to be possible to address the problems identified in the draft Regulations without effecting certain changes to the principal Act.
At this stage the Department of Home Affairs had been working with the principal Act and interim Regulations for just over a year, and shared the view of the Chief State Law Advisor that urgent amendments were necessary to correct fundamental flaws in the principal Act. Madam Speaker, a sound immigration policy is vital to the country for a number of reasons. Such policy should facilitate economic development, attract foreign skills and investment and reflect our commitment to human rights and the security of those who live within our borders, both citizens and residents. Our immigration policy should be consistent with our foreign policy objectives, particularly with regard to SADC and the continent; and consistent with our commitment not to discriminate on the basis of gender.
In the medium term Government intends developing and refining its immigration policies. This Amendment Bill and the regulations which will follow, represent a short term intervention. Nevertheless we have consulted extensively in the short period afforded us. The Amendment Bill contains a number of drafting and technical amendments. Here I outline some of the more noteworthy and progressive changes that will make the principal Act more user-friendly and equitable.
The Preamble has been amended to properly reflect the purpose of the Act, and to emphasise the need for the country to attract scarce skills; the role of the Government in the development and growth of the region and continent. A number of definitions have been clarified. For example, the definition of ‘spouse’ will be brought into line with a Constitutional Court judgement on this issue and will include permanent heterosexual and homosexual relationships as prescribed. The definition of ‘marriage’ and ‘customary marriage’ will be brought into line with existing legislation.
Instead of ‘powers of the Department’, in terms of the replacement section the Minister retains executive powers, and the power to take administrative decisions is vested in the Director-General; and both the Minister and the Director-General may delegate any of their functions and powers under the Act, except for some of the Minister’s powers, which have been specifically excluded.
The principal Act provided for the establishment and composition of an Immigration Advisory Board. The relevant sections will be amended to make provision to include representation of the National Intelligence Coordinating Committee, and the Department of Justice and Constitutional Development on the Board, and to change the name of the Department of Finance to National Treasury. This amendment requires that representation be at Deputy Director-General level, which will ensure accountability at a sufficiently senior level. The amendments provide that the Minister is no longer required to solicit public nominations for the civil society representatives on the Board; rather the amendment allows for the appointment of one representative of organised labour and one representative of organized business. The Minister is also able to appoint up to five members of the Board on the basis of relevant expertise. The operations of the Board will be prescribed by regulation.
Amendments to the principal Act reflect the advisory nature of the Board, and emphasise the role of the Board in facilitating interdepartmental co-operation on immigration matters. Likewise, the section that mandated the Director-General to establish a liaison committee of departments involved in border control will be repealed, as it is felt that existing forums already serve that purpose. A new section dealing comprehensively with regulations will remove the cumbersome requirements concerning public comments, which required the Minister to respond to each comment in footnotes to the regulations. However regulations will be published for public comment. In response to concerns raised by the State Law Advisers that a number of the existing regulations are ultra vires, the amendments now include a list of matters on which the Minister may make regulations.
Amendments have been made to Section 8 of the Immigration Act to streamline the process of internal appeals and reviews of administrative decisions taken by officials in the Department, and to bring it into line with the Promotion of Administrative Justice Act of 2000. In order to bring the principal Act in line with other legislation, powers or functions are attributed to the Director-General and not the Department, as is currently the case in the principal Act. As the legal mandate to levy fees such as the Training Fund under the principal Act falls under the Department of Labour under the Skills Development Act, this provision will be deleted.
The requirement for a Chartered Accountant certificate has been removed from the Act. Foreigners or employers will now have to prove certain matters to the satisfaction of the Director-General, which may include the submission of a chartered accountants certificate. These will be specified in the regulations. This reflects our conviction that the implementation of immigration law and policy should not be privatised and should always fall under the mantle of government. While we recognize the expertise of chartered accountants in assessing complex financial matters, we believe it is not appropriate, for example, to hand them the responsibility of evaluating labour standards and agreements.
While immigration law is a specialised field which requires specialised expertise, it is not appropriate to legislate such courts, and the reference to immigration courts will be removed from the principal Act. The reference in the Act to courts will now be to magistrate’s courts for criminally-related immigration matters, with judicial review remaining in the hands of the High Court.
The principal Act prohibited the recording of entry into and departure from the Republic of citizens. In response to concerns of Statistics South Africa, the Reserve Bank and the South African Police Services, among others, an amendment will provide for such recording. Two new sections will be inserted in the principal Act that will deal with visas and transit visas. These will set out the circumstances under which a foreigner is required to have either a visa or transit visa. This will simplify the process of determining which countries are visa-exempt and enable proper consultation by the Minister with other governmental stakeholders.
While the principal Act provides for an asylum permit, a new clause introduces an asylum transit permit, which is to be valid for 14 days. This will enable an asylum seeker to report in person to a Refugee Reception Office within that period, to apply for an asylum seeker’s permit in terms of the Refugees Act, 1998 (Act No. 130 of 1998). This will clearly distinguish asylum transit permits from asylum seeker’s permits. If the transit permit expires before the holder has reported to a Refugee Reception Office, the holder becomes an illegal foreigner and will be dealt with as such in terms of the principal Act. This amendment is designed to protect bona fide asylum seekers, while at the same time discouraging abuse of the process. We recognise the need to address legislative and operational issues in dealing with asylum seekers in the future.
A schedule to the principal Act (which had not yet come into operation) had the effect of amending the Refugees Act, 1998, in effect replacing the Refugee Appeals Board with the Immigration Court. This has been repealed, so that there is no impact on the Refugees Act. Amendments will make it possible for the Director-General to withdraw a permanent residence permit the first time a holder is convicted of any serious offences provided in schedules to the Act, and the provision that takes away this sanction after a permanent resident has been in the Republic for four years will be done away with. Amendments to the principal Act will require a foreigner married to a South African citizen or permanent resident to wait for a period of five years before being able to apply for permanent residence on the basis of the marriage. Foreign spouses will be entitled to a temporary residence permit which will allow them to work and study.
A further amendment provides that anyone found in possession of a fraudulent residence permit, passport or identity document is regarded as a prohibited person and therefore does not qualify for a temporary or permanent residence permit, a visa or admission into the Republic. Amendments requiring that police officers or immigration officers interview any person whose status is in doubt, before taking such person into custody, will ensure that the rights of citizens and non-citizens alike will be respected.
Madam Speaker, I would like to close by thanking all the officials in my Department who, together with the State Law Advisors, worked so hard on these amendments, and who are poised to ensure that regulations are published without delay. I would also like to thank my colleagues in Cabinet and members of their departments for their helpful comments and insights given at such short notice. I am sure that you will all agree that these amendments will improve and streamline the operation of immigration management and control, as well as provide a basis for transparent and workable regulations as promised by the President.