Comments on Draft Immigration Bill1

Comments on Draft Immigration Bill1

Edward Nathan Sonnenbergs

Dear Sir/ Madam

SUBMISSIONS ON THE IMMIGRATION AMENDMENT BILL 32 of 2010

We refer to the above and in particular to the public hearing scheduled to take place at Parliament on 25, 26 and 27 January 2011.

Our written submission serves merely as a precursor to the verbal representations we wish to make at the public hearings.

Although the Immigration Amendment Bill does not amount to an extensive overhaul of the Immigration Act, the proposed changes to the Act are likely to have far-reaching consequences on immigration to SouthAfrica. It is thus crucial to ensure that therevision tothe Immigration Act should be aimed at comprehensively dealing with the challenges experienced due to shortcomings of the current Act and Regulations. In this regard, there are number of issues which are not addressed or are insufficiently addressed by the proposed amendments.

These are more comprehensively dealt with in our comments hereunder:

1.One of the stated purposes of the Bill is to correct technical defects of the principal Act which was caused by its hurried passage through Parliament, and as a result of concerns which became apparent in the implementation of the Act and regulations over the past number of years. The invitation to submit comments on the proposed Amendment Bill was only received on Thursday, 13 January 2011 and very little time has, yet again, been afforded to comment on the proposed amendments to the Immigration Act 13 of 2002;

2.We must stress the necessity of the simultaneous amendment of the Act and the Regulations thereto, particularly in light of the fact that the changes proposed in terms of the Immigration Amendment Bill will, in many instances, be directly in conflict with the Regulations currently in place. It is difficult to make sense of the impact of the amendments without the benefit of the extent of the proposed amendments to the Regulations, which will no doubt in due course be published. The process embarked upon is thus somewhat flawed and imperfect. It would have been much better had the proposed new Regulations been published with these amendments.

3.The Immigration Act and Regulations must, of necessity, be practically capable of successful implementation and enforcement.

The following proposed changes are likely to cause challenges in this regard:

3.1.Applicants for visas and temporary residence permits will have to visit offices of the Department of Home Affairs or a foreign embassy to apply in person for their status. Attorneys, Advocates and Immigrations Practitioners may no longer lodge applications on the applicants’ behalf as provided for in the current Act. This is likely to cause severe problems, as it is impractical to expect executive level employees of multinational companies to queue at the Department’s offices for hours on end to submit applications, particularly since this cannot be done by appointment. Bearing in mind that each agent often submits numerous applications per day, it is also likely to exacerbate the poor conditions and overcrowding experienced at Home Affairs offices nationally.

3.2.Applications for a change in status or changes to the conditions of a permit can no longer be brought in South Africa without the approval of the Minister of Home Affairs, and approval will only be granted in exceptional circumstances as prescribed by the Minister. On a practical level, it is unlikely that the Minister will be able to deal with the large volume of applications that is likely to be received. The provision is also unnecessarily onerous where applicants already hold legitimate status in South Africa, for example, where a study permit holder applies for a work permit, or a foreigner applies for a change of conditions from one work permit category to another, or changes employment in South Africa.

3.3.Minors will now have to have their own valid passport to enter or depart from South Africa, whereas they could previously enter on the basis of their parent’s passports provided that their details were endorsed on their parent’s passport. This is likely to cause particular difficulties with passport holders of countries who generally endorse the minor’s right to travel in the parent’s passport;

3.4.The Amendment Bill provides that unaccompanied minors must be interviewed by an Immigration Officer of the same gender. If, as we suspect, the concern is for the safety of the minor, then the provision should ensure that such minor is always in the presence of at least two Immigration Officers present simultaneously, or ideally in the presence of a third party representing the interest of the minor.

3.5.Study permits must, in terms of the Amendment Bill, be issued for “a period not less than the period of study”. This is impractical and subject to abuse, particularly where such permit is issued to a minor who is only studying whilst accompanying a work permit holder to South Africa. We propose that study permits be issued in accordance with the duration of the period of stay of the main permit holder.

3.6.It appears to us that insufficient consideration has been given to the economic impact and the impact on industry of the proposed changes set out hereunder. Furthermore, if, the purpose of the amendment is to curb abuse of these permit categories, the remedy for the evil is to ensure that the applications are properly motivated and scrutinised by the Department. The answer is not to do away with provisions which provide useful practical remedies and which further economic development and serve the operational requirements of industry.

In this regard, we raise the following concerns:

3.6.1.A major concern is that business permits will only be issued in respect of businesses prescribed to be in the national interest. Even if the list comprises a defined list of sectors, it is likely to stifle economic growth from foreign direct investment, particularly in burgeoning industries.

3.6.2.The deletion of the Director-General of Home Affairs and Department of Trade and Industry’s ability to reduce or waive prescribed capital requirements is likely to impact negatively, particularly as no provision is made for low capital, labour-intensive businesses, or establishment of businesses in sectors which government wishes to promote, where capital requirements are not met.

3.6.3.Quota Work Permit and Exceptional Skills work permit categories are combined under the critical skills work permit category, which proposes to effectively do away with the Exceptional skills category. The challenge is that a prescribed list of critical skills may not adequately provide for applications by talented individuals in various fields, including, for example, Arts, Entertainment and Sport.

3.6.4.It is proposed that Corporate permits only be issued to companies which conduct business in limited sectors, as published in the Government Gazette. This may pose a significant challenge to corporateswhere the sector is not recognised, but skills are in short supply.

3.6.5.It is proposed that anyone who has overstayed their visa a prescribed number of times will automatically become an undesirable person and therefore ineligible for a permit, visa, admission to the Republic or Permanent Residence. This is particularly challenging if one considers the number of overstays currently being caused by the Department’s own inability to renew visas timeously.

We propose that any permit holder whose application is pending for more than three months at the time of expiration of their exiting permit be granted an automatic extension of their permit until such time that their application is adjudicated. This will also resolve the prevailing challenge to industry, where key employees are rendered unable to work due to the Department’s failure to timeously finalise their applications.

3.7.The Bill’s proposed drastic amendmentswhich increasethe maximum sentences for contraventions of various sections of the Actis a welcome deterrent to contravention of the Act.

3.8.We take the liberty of proposing the following general amendments for inclusion in the Bill:

3.8.1.A strong need exists to introduce an all-encompassing provision under which application may be made to the Minister, the Director-General or alternatively the Department, in respect of special circumstances which do not fall directly within the ambit of the Act.

3.8.2.Provision must be made foradult dependants who have already attained the age of majority, but who are for specific reasons still dependant on their parents. For example, where a mentally challenged person who has attained the age of majority resides in South Africa with their parent or legal guardian who holds legitimate status here.

We would like an opportunity to address the committee on, inter alia, the issues highlighted above in greater detail and accordingly request that we be allowed to makeverbal representations at the public hearing scheduled to take place at Parliament on 25, 26 and 27 January 2011.

Please do not hesitate to contact the writer on +2721 410 2500 should you have any queries in relation to this matter.

Yours faithfully

EDWARD NATHAN SONNENBERGS

Per:

ZAHIDA EBRAHIM