Ahallmark of South Africa’s immigration policy has been the haste with which legislation has been tabled by the Department of Home Affairs and passed in the past seven or eight years.

While the White Paper on Migration was tabled after what can only be described as an extremely thorough consultative process, on the day the Immigration Act was passed by Parliament in 2002, the then Minister announced that it was deeply flawed and already needed to be amended. An amendment was rushed through from start to finish in a matter of months in 2004 and came into operation in 2005. But that was imme- diately seen as being flawed and an amendment was driven through Parliament and passed in 2007 – but, again, after a very brief consulta- tive process. However, the 2007 Act has yet to come into operation.

The 2010 Amendment Bill, presented to Parliament recently against the background of the amnesty for Zimbabweans, seeks to amend the 2007 Act and the earlier amendment – and to wade into critical debates about the importation of skills without the benefit of the 1999 White Paper being reviewed and with input from stakeholders.

A remarkable feature of the Bill is the concession in the memorandum that there has been no consultation on the Bill – even if the few stakeholders that had been spoken to thought they had been consulted. This is truly a case of the tail wagging the dog.

What is the country’s national immigration policy? Currently, the closest we come to a national immigration policy is in the preamble to the 2002 Immigration Act, which consists of a series of largely prudent statements based, to some extent, on the White Paper. To date, there has been no significant tinkering with the wording of that preamble.

However, there is a widening void between key provisions of that preamble, on the one hand, and a number of provisions of the current Act, provisions of the 2010 Bill and Department of Home Affairs practice, on the other. For example, the preamble provides that “economic growth is to be promoted through the employment of needed foreign labour, foreign investment is facilitated [and] the entry of exceptionally skilled or qualified people is enabled . . .” and that “the South African economy may have access at all times to the full measure of needed contributions by foreigners”.

Significant New Entries in the 2010 Bill
Why does the Department of Home Affairs propose in the 2010 Bill that permits for the ‘exceptionally skilled’ be scrapped altogether? Why would it require that, to extend their current permits, the foreigner and his or her family pack their bags, return to their country of origin, apply for the extension back home – which may be at an embassy far from the foreigner’s home – and await the outcome before returning to South Africa (if the application is approved)?

Why does it propose that these foreigners, whom we need, take time off from their jobs to travel to embassies or regional offices and stand in queues themselves?

Why has it been deemed necessary to scrap the exchange permit that allowed the country to attract, and to sell itself to, young skilled persons, even if only as a tourism destination?

Why does the department propose to limit foreign investment to only those companies falling within the sectors of the economy prescribed to be of strategic interest, while the Minister of Trade and Industry tells his Botswana counterpart that we do welcome foreign investment?

And why is the depart- ment offering unskilled workers from Zimbabwe a better and speedier deal on temporary permits than it does to skilled persons who are badly needed by our companies?

The Bill also states that minors, even if they are infants, will not be allowed to enter the country unless they are travelling on their own passports – and not the passport of one or other of their parents, as still happens?

The Bill – in what is perhaps the only real development in immigration policy – proposes a radical increase in criminal and administrative penalties for contraventions of the Act, including overstaying. One challenge here is that, as we have seen in recent months, people can find themselves overstaying without there being any fault on their part whatsoever and owing entirely to poor planning on the part of the Department of Home Affairs.

Strange but Worryingly True

There are two significant entries in the Bill that can be described as being strange but worryingly true.

The first requires all ‘conveyances’ (methods of transport) to transmit electronically to the department the details of all passengers before the carrier departs for South Africa. A problem here is that the term ‘conveyance’ includes not just ships and planes, but also taxis and ‘any other means of transport’. So the long-distance taxi loading up in Harare or Maputo will need to transmit its list of passengers and other ‘prescribed information’ electronically to the Department of Home Affairs before it leaves.

The second is very disturbing and smacks of ‘Big Brotherism’. The duty to disclose, in advance, the list of passengers on a flight will extend to internal flights too. The Bill proposes that this is required “for the better achievement of the objects of this Act”, but does not tell us why it is needed or what interest Home Affairs could possibly have in such information and what it would do with that information.

Significant Omissions
But so much for what the Bill does deal with. What about the ongoing shortcomings in the Bill that the department has not seen fit to propose correcting?

Over a decade ago, the Constitutional Court directed the department to resolve the matter of the rights of foreign spouses of South Africans in existing relationships. The current Act still does not properly capture those directions and the Bill makes no mention of these omissions.

The Bill continues to leave the estranged foreign spouse dangling in the wind and at the mercy of either the former South African spouse or the principal permit holder. If the foreign spouse needs to stay in the country to be with the couple’s children, to work (particularly if he or she is not skilled), or even merely because he or she has spent many years living here, there is simply no convenient category of permit in the Act.

Recently, Home Affairs Deputy Minister Malusi Gigaba reportedly said that the Bill dealt more with permanent residence than with temporary residence. However, the current Act provides that, if a person has been on a work permit for five years, he or she quali- fies for permanent residence. However, the foreigners cannot include their families in the application for permanent residence. The families must await the outcome of that application and then apply for permanent residence on the basis of their newly found familial relationship to a permanent resident.

If you qualify for permanent residence because you have a prescribed scare skill, you can include your family in that application. And if you are self-employed, you qualify to apply for permanent residence – and, again, you can include your family in that application. But if you qualify for permanent residence on the grounds that you are retiring here, you cannot include your family. Nor can you include them if you are deemed to be exceptionally wealthy – they too must wait for you to get your permanent residence and then they need to apply as relations of a permanent resident. There is simply no logic to this arrangement, but there is no suggestion that it will be corrected any time soon.

This Bill points to having been drafted by narrow sectoral interests within the Depart- ment of Home Affairs without regard to national or international policy parameters or the needs of other departments. A significant number of provisions and omissions suggest that Parliament is being asked to intervene and patch over administrative shortcomings. Why ban immigration agents instead of subjecting them to proper training and regulation? Suspicions continue to linger that some of the underlying logic is motivated by xenophobic thinking within the department, despite its multibillion-rand series of makeovers.

Coherent immigration policy, together with legislation reflecting such a policy, is central to ongoing economic development in South Africa. If this Bill is to be taken through Parliament without the benefit of the country getting – and ‘inputting into’ – a new immigration policy, then let us not rush this Bill through Parliament.

This only makes more work for the courts. And the only victims will be companies trying to work with the system and persons who might have been employed by companies that will no longer come here.

Friedrich Nietzsche reportedly said that “one will rarely err if extreme actions be ascribed to vanity, ordinary actions to habit, and mean actions to fear”. The importance of a properly managed immigration policy demands that we have the courage to step back from adopting ‘mean actions’ driven by our irrational fears of the unknown.

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