Migration Policy Briefs
Balsillie School of International Affairs
The Southern African Migration Project (SAMP) notes the promulgation of an Immigration Bill in Government Gazette Vol. 416 (No. 20889) on 15 February 2000 and the invitation to submit comments. SAMP supports the Department’s contention, implicit in the gazetting of a new Bill, that the Aliens Control Act is an unacceptable instrument for the sound and effective management of migration. The rescinding of the Aliens Control Act and its replacement by a new Immigration Act is therefore a matter of highest priority. However, it is equally important that such legislation is not rushed; that it is constitutionally-sound, implementable and cost-effective.
SAMP’s input to the public process of revising the Bill is contained in this document. However, we note the existence of a separate process of review of the White Paper on International Migration by the Portfolio Committee on Home Affairs which is holding public hearings on the White Paper from 15-20 May 2000. The Committee is apparently not considering the Immigration Bill at this time. SAMP is unclear how these two processes inter-relate and will therefore also be making an input to the Portfolio Committee reviewing the White Paper.
The Immigration Bill notes the limited list of organizations consulted by the drafter(s). There are some notable absences from this list, including the Department of Labour, COSATU and prominent NGO’s in the migration field. It is unclear why the drafters would consult Anglo American Corporation and the South African Chamber of Mines and not NUM. In addition, it is unclear why Georgetown University and the US INS were the only organizations consulted externally. The Immigration Bill does not specify what was done with the numerous public and expert submissions received by the Department on the White Paper. It is possible that these inputs informed the drafting of the Bill although that is not clear. It has been reported that the Immigration Bill has not changed substantially from an earlier Migration Bill which was prepared before 30 November (the deadline for submissions on the White paper).
The intent of any Bill is to give effect to the policies laid out, and accepted by government, in a policy White Paper. Hence, there should be consistency between the principles of the White Paper and the immigration legislation which accompanies or emanates from the White Paper. In our view, the Immigration Bill is problematic in this regard. There are elements in the White Paper which are ignored in the Immigration Bill. Contrariwise, there are certain provisions in the Immigration Bill which appear to have no rationale or justification in the White Paper. This input aims to point out these inconsistencies.
In its submission to the Department of Home Affairs on 30 November 1999, SAMP identified a series of problems with the White Paper on International Migration. However, many of the problematic areas in the White Paper have been carried over into the Bill. SAMP’s submission on the White Paper is therefore appended to this document for ease of reference. This input also aims to show how the Immigration Bill replicates some of the problems previously identified in the White paper.
As many commentators have noted, the White Paper was unclear on numerous policy issues; sometimes making definitive recommendations and sometimes merely speculating on whether some measure might be desirable. The lack of definitiveness on key issues means that it is unclear whether many proposals are government policy or not. Some of each type of recommendation are incorporated into the Bill so the problem is not resolved by reference to the Bill.
The emphasis in this input is on problem areas with the Immigration Bill. However, the Bill does contain many positive elements that are far superior to the Aliens Control Act. For example, the provisions of Section 3(6), Section 11, Section 16, Section 19, Section 21(1), Section 28(1), Section 29 (1) (a,e,f), Section 33 (1) (a to c), Section 34 (1) and (2), Section 40. In our view, these and like sections and sub-sections, should be enshrined in the finalized Immigration Act.
This input begins with some general comments on the Immigration Bill’s purposes. Then it considers points of contradiction with the White Paper. Finally, on the Bill itself, our approach is to identify particular sections where the proposed process: • will not assist the government in reaching its stated goals
- is in conflict with its stated goals
- is counter to common law notions of procedural fairness
- potentially violates the Constitution and Bill of Rights
- has been tried and failed in other jurisdictions
- will have an effect opposite to the one intended
- is unimplementable for reasons of logistics, cost, etc.
There are also statutory issues that need to be considered if this Bill is to be become law (e.g. interaction with the Public Service Act, the Public Finance management Act and the Administrative Justice Act).
Crush, J. & Williams, V., eds. (2001). The New South African Immigration Bill: A Legal Analysis (rep., pp. 1-12). Waterloo, ON: Southern African Migration Programme. SAMP Migration Policy Brief No. 2.