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Transcript

Presenter – Ann7 News:
Minister we have a lawyer on the line, we have Craig on the line who has some concerns about these new regulations. Craig the sectors in which foreigners are permitted to establish businesses is decided on by the department of trade and industry is also not being done, you also have concerns around that.

Craig Smith – Immigration Lawyer:
Yes good evening and thank you for allowing me onto your show, the Minister Gigaba has made it very clear that in his view the regulations are sound and he seems to be very confident that it will pass constitutional muster. My issue is apart from the regulations, I am quite concerned where the Minister has gone on record and said that we have tested both the primary legislation the immigration act that has gone before parliament with the NCIP and have consulted with senior council. In terms of the constitutional about the legislation the regulations, he has gone on record. How the 9th of May in regards of to the regulations principle act there is a 2007 amendment, the 2004 amendment the 2007 amendment, the 2011 amendment and the 2014 immigration regulations and god knows how a normal foreigner is supposed to navigate around those pieces of law. Be that as it may I would like to ask the Minister how he envisages, how can he explain section 27 of the immigration act and 27 B as they are totally erroneous 27 A effectively refers to an appeal section in its operation, so I don’t know how 27 A is existing in the first place and the second point is that the department have failed to appeal section 27 B which pretends to exceptional skills. So what you actually have, and it is surprising to hear that it has gone through all the checks and balances, that there are still those glaring mistakes in terms of those in the primary legislation so I mean I have not even got onto the regulations yet and I am surprised that the department have not picked this up.

Presenter – Ann7 News:
I am going to refer immediately over to the Minister, Minister your response to that.

Malusi Gigaba – Minister of Home Affairs:
I think what we shouldn’t confuse are people who believe that we should have a piece of legislation which makes it easy for people from Europe to come to South Africa, and make it difficult for people from Africa to come to South Africa. What we are doing in terms of this legislation and the regulations is to stream line the types of visas we give to people coming into our country, to separate temporarily residents visas from the permanent residents permits and we are making it now a law that companies operating in South Africa must employ 60% South African’s as part of their total work force and that children that are travelling into South Africa and out of our country must be in possession of a passport, in possession of an official birth certificate and if they are not travelling with their parents, the people travelling with them must be in possession of an Affidavit which have been signed by the parents of the children in order to contribute in the global campaign against child trafficking and smuggling. Now I don’t know what would be irrational and unconstitutional in all of this, if people from elsewhere have to apply to South Africa for visas, they will from now onward apply in terms of the 2007 and 2011 amendment legislation and the regulations that have been passed on Monday the 26th this year but I think that we need to continue discussing so that we can clarify all of the confusion that exist in terms of these regulations.

Presenter – Ann7 News:
There appears to be quite a lot of confusion while we are addressing it now and this is probably not a long enough forum to address all the issues around it. Craig I believe there is also an issue regarding the requirements for a spousal or partner permit can you just clarify what your concern is with regards to that.

Craig Smith – Immigration Lawyer:
Here is the short answer, you may be in a spousal relationship and as we know there is binding cases inside Africa protecting the rights of dignity for spouses. Home affairs has effectively said that if you cannot demonstrate, let’s assume you are not married but in a permanent relationship and let’s assume you have two kids but you haven’t made two years of a permanent relationship then you will not qualify for that application and let’s look at the situation that we would have, that family would either have to now as of today no as of Monday, would have to all leave the country, apply abroad or the family is broken up and the foreign person would have to apply abroad and as of Monday the actual act is incomplete because of certain obvious inconsistencies and most of all my main concern is both parties, both spouses have this expectation of protection of rights of dignity now they are abused and if they have children then it gets worse. I have a specific client that has come to South Africa and are undertaking IVF and they specifically engage with a medical organisation and the foreigner is on a visitor permit. Effectively what Minister Gigaba is saying is that they now need to leave, abandon the IVF, wait abroad of which the immigration regulations are incomplete because of the outstanding matters, let’s not even talk about constitutionality and I don’t think that a department in its stated intention in terms of its preamble stemming all the way back to 2004 wanted to set a new era of human rights culture and move away from the good old days of the aliens control act which was incredible restrictive and enforcement orientated.

Presenter – Ann7 News:
I am just going to take your point about the spousal permits and follow it through to the minister and give him an opportunity to respond to that.

Malusi Gigaba – Minister of Home Affairs:
We have had many incidences of marriages of convenience in South Africa, where people come into our country, get involved in marriages of convenience, pay people to claim that they are their spouses and on the basis of that and that alone demand that they should be given residence in South Africa. We are trying to combat that, we have got to take steps to combat criminality there are very serious concerns globally about security and we must be able to protect the integrity of our country and of our sovereignty as a nation. This legislation does not and I repeat does not apply retrospectively, so people who have been involved in relationships before Monday will not be effected by this legislation except in instances when their visas or permits expire or elapse in which case they must now reapply in terms of the regulations as they are set on Monday there for the only people who will now be effected in terms of spouses by these regulations are those that are going to enter into permanent relationships as of after Monday the 26th. They will now have to comply, we understand there are inconveniences that people are going to experience and suffer but there are also inconveniences that we will suffer as a country as a result of lack of security and that is what we are trying to address in order that we balance. There is not body who is prohibited from coming to South Africa who is properly following our piece of legislation, everybody is welcome we have even taken an extra step to open new visa facilitations services around the country that are going to start next week in order that anyone wants to come in and work or visit our country are able to do so. What we are doing there is an important need to stream line how people enter South Africa, it cannot be a free for all, we are a country with laws which is sovereign and we need to ensure that we protect that sovereignty.

Presenter – Ann7 News:
Minister thank you very much for your time and responding, Craig thank you very much for joining us on the line and presenting those problems, there clearly are some grey areas that need to be sorted out but thank you for providing some clarity on something that is fairly complex. That was Minister of home affairs Malusi Gigaba and lawyer Craig Smith.

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