Institutional Reform and Management
At the outset, I wish briefly to reflect on the nature and purpose of a Green Paper. A Green Paper is a consultative document. It is designed to focus on certain questions that need to be addressed by the Government in the process of formulating policy. It is not a statement of Government policy, nor is it an academic thesis.
Its purpose is to extract responses from the public and interested parties, and to provide a framework for focussed discussion on new policy initiatives. To this end, I am convinced that the Green Paper on International Migration has achieved these objectives, and I wish to thank Dr. James and the Task Team for a job well done.
From Control to Managing Immigration
1. Economic Migration
Our present legal instrument - the Aliens Control Act (1991) - is based largely on the principles of control, exclusion and expulsion. Undocumented migrants are therefore not only unprotected by law, but are also vulnerable to its sanctions. The penalties include criminalization, arrest, imprisonment and summary deportation. The Department of Home Affairs' present approach in applying the Aliens Control Act is the detection, detention and deportation of undocumented migrants to their countries of origin.
Last year a total of 180,713 migrants were deported, of whom nearly nine out of ten were Mozambicans. In 1988 deportations totaled 44,217 of which three-quarters were Mozambicans. The steady increase in the number of deportations over the past eight years is a clear indication that the present control approach has failed to regulate or reduce the number of economic migrants from neighbouring states.
But the present approach might also be unconstitutional. Our Bill of Rights is a bill of fundamental human rights and not a charter of citizens' rights. There are only five instances where non-citizens are excluded from important rights:
Illegal immigrants consequently have no right to claim any of these rights, and can be expelled under ordinary legislation. But any legislation which can limit those constitutional rights which apply to everyone - whether legally or illegally in country - must meet the requirements provided in Section 36, and I quote:
"the extent of the limitation must be reasonable and justifiable in an open democratic society based on human dignity, equality and freedom..."
In limiting these rights certain factors must also be taken into account:
When limiting the rights of an illegal immigrant, the nature of the right would be a very important consideration. For instance, an illegal immigrant can hardly claim the right to adequate housing (sec 26) or the right to education under Sec. 29. But is almost inconceivable that a detained illegal immigrant's right to due process, in terms of Section 35(2), can be limited.
These rights are:
35(2)
In developing a new immigration system, we need to balance the rights of illegal immigrants on the one hand, against the burden on the state and our capacity to accommodate large numbers of illegal immigrants on the other. It is inevitable that we have to fundamentally transform our present immigration regime, to meet certain basic requirements in our Bill of Rights, like the right to due process.
The Green Paper proposed an innovative plan, that will attempt to facilitate desirable immigration and discourage undesirable immigration. The first element involves implementing a strategic immigration plan for South Africa in line with our regional responsibilities, our international obligations and the needs of our own economy. In the labour market, for instance, flexible labour quotas could create a system of regulated temporary employment schemes. This could give citizens of neighbouring countries access to employment opportunities in South Africa, and South Africa greater effective management of economic migration in the region. However, the proposal to grant greater access to informal traders from the SADC could increase tension in our country, where informal trading among the unemployed is often the only alternative to absolute poverty.
The second element involves distinguishing between the institution responsible for designing the immigration plan, the institution responsible for executing it, and the institution responsible for reviewing immigration decisions.
The third involves training a professional cadre of immigration officers to enforce immigration and naturalization laws. (The SAPS should not be involved in this process).
And the fourth element involves creating an independent body - such as an Immigration Review Board - to act as a watchdog and to adjudicate on appeals. These elements are in line with international good practice.
Coupled with the new rights-based approach to undocumented migration, we must also intensify our actions to enforce the regime that we create. This means more effective border policing, by professionally-trained immigration officers within South Africa, and greater cooperation with our partners in the SADC to curtail the outflow of economic migrants from their countries.
2. Skilled Immigration
As part of the reform of our immigration system, the Green Paper also proposes a new approach to skilled migrants. The present approach in the Aliens Control Act will only allow a foreign national a work permit or permanent residence permit if that person:
"is not likely to pursue an occupation in which, in the opinion of the (Immigration Selection) board, a sufficient number of persons are already engaged in the Republic to meet the requirements of the inhabitants of the Republic."
But the Green Paper points out that labour statistics are so poor that it is almost impossible to determine the availability of suitably-qualified South Africans, or to determine the extent of the shortage in particular occupational categories. The result is wide administrative discretion, that does not always serve the best interest of the country.
The Green Paper proposes a new points-based immigration system to replace the current apparatus, including the Immigration Selection Boards. This system would largely be administered by missions abroad, who would be given broad guidelines as to the kind of skilled immigrants that are required by our labour market. Missions can also screen potential investors, with a reasonable threshold to be granted the necessary immigration permits to enter SA.
The present selection process is cumbersome and inflexible, and open to bureaucratic manipulation, delays and abuse. A new selection process must provide objective criteria and procedures to select prospective skilled immigrants. The points system might well prove to be a viable alternative to the present immigration selection process.
3. Refugees
The Green Paper proposed that refugee protection is dealt with separately from legislation and policy dealing with immigration. The Green Paper further states that the rights of refugees shall fall under four broad categories:
The majority of these rights, including the socio-economic rights, are rights to which all persons are entitled in terms of the Bill of Rights, and are not restricted to citizens only. Asylum seekers are presently dealt with in terms of the Aliens Control Act as a class of prohibited persons, who may, or may not, be granted permission to stay in SA. This approach clearly presents some problems, because refugee protection is an international law and human rights obligation, rather than an immigration issue. But there are instances where immigration policy influences the asylum process.
In SA, we have seen that in the absence of flexible, orderly and fair immigration procedures, there is an increase in the number of cases where the asylum procedures are abused. It is therefore of the utmost importance that a Refugee Bill is enacted as soon as possible. Such legislation must reflect our international law obligations and the growing human rights culture within the country.
A Refugee Bill must also provide for the following:
The emphasis must be on quality temporary protection for refugees, with repatriation to be seen as the primary solution, but refugees must be allowed to apply for permanent residence after a reasonable period if this is not possible.
CONCLUSION
Since 1994, South Africa's position has radically changed from being a pariah state to a respected country, integrated into our continent and the international community. A new immigration policy must take account of the fundamental changes that have occurred over the last three years, and they must foster regional economic integration.
South Africa is the dominant economic power in the sub-region, and it has a particular responsibility to provide regulated access to our economy, as part of the process of rebuilding the regional economy. There is a strong linkage between undocumented migration and the state of the economies of the countries of origin. We must engage our neighbours in an urgent debate on how to address the causal factors of economic migration. To address these causes at their root. Because it is not in our region's long-term economic interest for our neighbours simply to turn a blind eye to the exodus of economic migrants into South Africa.
Ultimately, if South Africa is flooded with unemployed migrants, our capacity to promote economic growth in the region will be damaged.
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