Immigration Amendment Bill: briefing and adoption

Meeting report

SOCIAL SERVICES SELECT COMMITTEE
25 August 2004
IMMIGRATION AMENDMENT BILL: ADOPTION

Chairperson: Ms J Masilo (ANC)

Documents handed out:
Presentation on the Immigration Amendment Bill
Immigration Amendment Bill [B11-2004]
Portfolio Committee Amendments to Immigration Amendment Bill [B11A-2004]
Bill with Portfolio Committee amendments included [B11B-2004]

SUMMARY
The Department of Home Affairs briefed the Committee on the Immigration Amendment Bill. The Committee unanimously agreed to adopt the Bill after being informed that a newly constituted branch of the Department would strengthen its capacity to implement the legislation.

MINUTES
The Home Affairs Department delegation consisted of Mr B Gilder, Director-General, Ms D Tlhagale and Mr W Vorster, Legal Advisor to the Director-General, and Mr N Matibe, Legal Services Section.

Ms Tlhagale briefed the Committee on the background of the Bill and highlighted its major items (see attached document). The Bill sought to fix 'fundamental flaws' in the Immigration Act, 2002, before finalising immigration regulations within three months of the President's 'State of the Nation' address.

The Department of Home Affairs had originally envisaged 'a longer-term process to review the country's immigration policy as a whole, and a short-term process to make urgent amendments to the principal act. They drafted an Amendment Bill that was presented to a Committee of Ministers on Immigration Regulations, in June 2004. The Committee approved the Bill. Thereafter, Cabinet approved the Bill subject to the Department's consultation with the National Economic Development and Labour Council (NEDLAC). The Portfolio Committee on Home Affairs added certain amendments to the Bill on 2 August.

Amendments recommended by the NEDLAC report were contained in Subsection 19(2) of the Bill (see document B11B2002). The report had collaborated with various stakeholders and business and labour organisations. The latter contributed amendment (b) of the subsection, because they wanted the Department to provide certification for workers.

Discussion
Mr M Thetjeng (ANC Limpopo) suggested that the definition of 'spouse' was premature. Did this pre-empt the anticipated result of a current High Court case? Ms Tlhagale replied that the said case disputed the common law definition of marriage and not spouses.

Mr Thetjeng asked how the Department would be able to validate the claims of an asylum seeker. The D-G replied that although the Bill had amended the asylum transit permits, it did not govern policy issues regarding permits. At present, five refugee reception centres operated in South Africa. These were in Cape Town, Johannesburg, Port Elizabeth, Durban and Pretoria. The Refugee's Act obliged unconditional admission of refugees to these centres. The Department was planning to install 'refugee determination offices' at major South African ports of entry. A longer-term proposal to set up holding centres at these ports was being reviewed.

Mr M Sulliman (ANC) asked how the Department would deal with conflicting information provided by spouses regarding their relationships. The D-G replied that the Department would have to act with an objective assessment of the circumstances of the relationship.

Mr Thetjeng asked if a resident by marriage or good faith were separated from his/her spouse, would the residential permit still apply. Mr Vorster responded that the resident would have to return to his/her country if seven conditional years of the marriage or good faith relationship had not been served out. Ms Tlhagale referred to the amendment to section 27 by the Portfolio Committee (see document (B11B-2004).

Mr T Setona (ANC; Free State) wanted an explanation for the amendment to Clause 13b(2) (see document B11B-2004). What was the 'prescribed manner' for the D-G authorising visitors permits? Ms Tlhagale said that the Department used a 'Delegation Instrument', allowing the D-G to delegate powers to a senior official. This applied to minor administrative details. The Immigration Regulations listed criteria for authorisation.

Mr B Tolo (ANC) asked whether a foreigner could obtain permanent residence after five years of a marriage or good spousal relationship. Ms Tlhagale said that permanent residence was obtained after five years. After an additional two years, this permit would have to be renewed and the relationship validated.

The Chairperson asked how the Department was able to check the validity of marriages or good faith spousal relationships. Ms Tlhagale said that the Department conducted interviews with both spouses upon the application for a permit, and thereafter if necessary.

Mr Tolo was worried that foreigners were entering South Africa via Lesotho, where immigration regulations were lenient. Mr Thetjeng noted that foreign-owned businesses in rural areas were a threat to local enterprise.

Mr Setona made note of the tendency to generalise when talking of foreigners. It was important that Members did not fall into the trap of stereotyping.

The DG pointed out that whatever regulations were imposed, there would still be ways for criminals to deceive immigration authorities. He noted that lawyers and business officials of high rank were aiding and abetting illegal foreigners. The Department was 'fed up' with people exploiting this country's hospitality, and it hoped to monitor offenders more closely in future. The new branch of the Department should help strengthen capacity. The D-G felt that the Bill should discourage fraudsters. The item on a five-year temporary residence status for foreign spouses particularly discouraged foul play.

Rev E Adolph (ID; Western Cape) asked what assistance the Committee might offer to the Department of Home Affairs.

The D-G said that, due to capacity constraints, implementation of the Bill was the Department's toughest challenge. The Department required more funds. It awaited a report in October reviewing progress of the Task Team that it set up in May to amend the Act. Provincial departments should monitor implementation in their constituencies and report their observations to the Department.

Mr Sulliman asked whether there was 'synergy' amongst the SADC countries regarding immigration regulations. The DG replied that South Africa was active in promoting policies that were harmonious with the SADC.

After the Committee approved the Immigration Bill clause by clause, the Chairperson formally announced the adoption of the Bill

The meeting was adjourned.