On the 16th of May 2014 the Minister of Home Affairs and the President signed into law the 2007, 2011 Immigration Amendment Act and the Regulations to come into effect of the 26th of May 2014. While the Minister hailed this move as a dawn of a new era in immigration law of South Africa, careful scrutiny of these laws reflect a completely opposite picture. The new Laws if anything are step back instead of giant leap forward, especially when viewed in the light of the Constitutional democracy in which we live. It appears, in our view, that the new laws are more of an error than a new era.
The first thing that points to an error in the new laws is found in the conflict between the Preamble of the Act and the Regulations that flow from it. The Preamble sets the tone of a very forward looking Immigration law regime. This stems from the historical drive to move away from the draconian principles and laws of the old Alien`s Control Act and its predecessors, which were tools of the apartheid government to control who can come in the republic. The Preamble has remained unchanged since the inception of the 2002 Act and stipulates the intension of the Act as:
To bring in a new system of Immigration Control which ensures that Permits are issued as expeditiously as possible on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria without consuming excessive administrative capacity
Economic growth is promoted through the employment of needed foreign labour, foreign investment is facilitated, the entry of exceptional skilled or qualified people is enabled, skilled human resources are increased, academic exchanges within the SADC is facilitated and tourism is promoted
That the south African economy may have access at all times to the full measure of needed contributions by foreigner.
A human rights culture of enforcement is promoted.
Taking a closer look at the details of the new requirements a different reality comes into focus. Firstly it is no longer possible in terms of 10(6) to change your status from a Visitor to any other Visa except in exceptional circumstances that are prescribed. This means that all application must be made abroad at the various SA Missions and the applicant is expected to comply fully with the very onerous requirements contained in the new Regulations. This is compounded by the fact that more than half of the foreign missions and local offices are yet to come to grips with the new regime of laws. No effective communication has been conducted by the Department to members of the public on the new procedures apart from the few vigilant immigration practitioners who caught wind of the new laws just as they were published in the Government Gazette and shared this information.
Moving on to the Spouse Permit and Regulation 3 dealing with same, the Department has now mandated that all unmarried Life Partnerships must have been in existence 2 years prior to the date of application. Furthermore the prospective applicant has to submit a Notarial contract, plus a raft of affidavits and they have to show some level of financial support among other requirements. The couple will be subjected to an interview by the officials to ascertain the legitimacy of the relationship. This process is not only invasive but also contrary to existing judicial precedents on Spouse permits. It is clear that the drafters of the Regulations never heard of the landmark case of Dawood V Minister of Home Affairs where the Constitutional Court held that any law that purports to separate families violated the fundamental rights of dignity and equality and therefore inconsistent with law. The new regulations pertaining to spouse permits are not only unreasonable but contrary to the spirit of a Human Rights based culture and simplified procedures espoused by the Act
The changes to the General Work Permit perhaps are the most bizarre moreso the involvement of the Department of Labour in the process. Applicants for a General Work Permit are expected to apply for a Certificate from the Department of Labour confirming a series of requirements. When one reads the Department of labour`s own requirements one cannot help get the feeling that the entire process has been reduced to a bureaucratic jigsaw puzzle designed to prevent the much needed skilled foreign workers from coming into the country. Perhaps the most bizarre of the 15 requirements is one that requires the employer to provide written evidence of labour search from Traditional Leader/Community Leaders/Ward Councillors/Community Based Organisations and NGO`s. It’s difficult to see any employer employing a highly skilled and qualified foreigner under such invasive conditions, never mind the fact that this is to be done while the would be applicant is in his/ or her home country. The department of Labour commits to issuing the certificate within 30 days meaning that the immigration process of a work permit has increased from 30 days to 90 days , with the 60 days stemming from the Department requiring an applicant to submit an application of a renewal or change of status 60 days before the date of expiry .Just reading the regulations and the Preamble of the Act, the regulations quickly shift from being a serious piece of law to a farce. One certainly cannot say the basis of the regulations is one of simplified procedures and objective, predictable and reasonable requirements and criteria and without consuming excessive administrative capacity. If anything it appears more as the Department of Labour is creating a backdoor to the policing of the Labour Laws. While the Act speaks of fostering interdepartmental cooperation it is doubtful this rather invasive piece of law achieves such a noble goal
The enforcement provisions of the new regime read more like an extract from the Aliens Control Act under the apartheid regime. While one cannot understate the importance of ensuring compliance with Immigration Laws and the need for tighter controls, this cannot justify the draconian penalties imposed under section 49. Not only can one be imprisoned for a period of up to 5 years for contravening the Act, a person can be declared an undesirable simply because they have overstayed in the republic. An overstay has been elevated to the same level as a severe criminal conviction and what is disturbing about this is the fact that there does not appear to be an exception to the rule. This means that if you have overstayed, whether or not, as a direct result of the Department of Labour and Home Affairs taking more than 90 days to process your permit you may be declared a Prohibited person.
Our Constitutional democracy makes it necessary to ensure that the Human Rights contained in the Bill of Rights are protected and all Laws and Actions by State and private individuals must be consistent with this principle. Reading the regulations it becomes clear that the fundamental Right to Fair, just and reasonable administrative action has been thrown out the window. It is glaringly clear that the Minister did not apply her mind in formulating these regulations. There was certainly no objectivity in the process at all because the new regime is more draconian and far removed from the principles of the Constitution and Act. There is no fairness or Justice in a system that changes the rules and gives the ordinary person a day to comply with the rules, without regard to the negative impact this will have on the people and economy or the decency to adequately inform those affected.
The regulations do not provide for a transitional period for applicants still in the process of submitting their various applications. There has been no word from the Minister on the so called Critical Skills for the Critical Skills Work Visa. The Minister has not gazetted the prescribed amounts for investment under the Business Visa and no word has been heard on the Minimum Payment on the Retired Persons Visa. Several inconsistencies also exist between the primary Act and the Regulations. For instance Section 27(b) has not been amended or substituted. Therefore it means that one can apply for an Exceptional Skills Work Permit, however the Regulations do not provide for such a visa. In fact according to the Regulations the Exceptional Skills Visa is no longer in existence. It also appears in terms of Regulation 24(7) a person can only apply for a Permanent Residence Permit Business Category if they can satisfy the requirements for a Critical Skills Work Visa which is certainly unreasonable.
There are definitely interesting a times ahead, as the country grapples with the far reaching effects of these laws and the manner in which they were introduced. The ground is certainly fertile for the much needed Immigration Jurisprudence and we will be seeing a number of court battles in the coming days. The one that is most certain to appear first is the call to review the Ministers decision to gazette these regulations. It doubtful that a proper consultative process was undertaken and unlikely that an Immigration Advisory board was consulted first if at all it exists. One can certainly say that the new regime is far from being the dawn of a new era as the Minster so boldly claimed but certainly there are a series of errors in the law and the process behind making the law.
Article written by:
Munyaradzi Nkomo B.Com Law; LLB (UWC)