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30 April 2017
Article by: Idéle Esterhuizen
Chris Watters discusses the Amended Immigration Bill and other immigration issues currently facing South Africa.
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It is fundamental that South Africa manages immigration in a way that enables the country to meet the demand for foreign skills and investment, while at the same time, not throwing open the doors, immigration attorney Chris Watters tells Polity.

He says South Africa has to revise its approach to attracting foreign skills and investment as the country is not currently a preferred business destination in the same league as the US or Canada.

“Investors are already wary of making long-term investment decisions, owing to high crime rates and the debate around the nationalisation of mines. The long-term effect might be that investors could end their investments altogether. Certainly, there is ample evidence that some investment projects have either been suspended or redirected to countries seen as less ‘problematic’,” he notes.

However, Watters believes that South Africa can still better sell itself as a favoured business location by improving its permit regulations and processes, besides other things.

“The Department of Home Affairs (DHA) has recognised this and has started rethinking its immigration policy. It is currently drafting policy papers, which will be published for public comment by the end of the year.”

He notes that this could lead to more substantive reforms to local immigration laws.

Meanwhile, Watters feels that certain aspects under the 2010 Immigration Amend- ment Bill currently being finalised in Parliament are not necessarily business friendly and do not fully support the achievement of the required balance between eco- nomic demand and immigration management.

He believes that aspects such as the requirement that applicants return to their countries of origin once in South Africa, to apply for a change in their permit status, will be a serious cost to the company and will only further discourage foreign investment and the importation of the required skills.

“Families and small to medium-sized enterprises in particular will not be able to afford the substantial travelling and down-time costs associated with sending a person back to his or her country. However, the DHA appears to be quite sanguine about this needless inconvenience,” he argues.

This will also affect people in South Africa on short-term deployment permits and who need to prolong their residence in the country for business reasons.

Watters also questions the DHA’s rationale behind the removal of Section 46 of the Act, which provides for immigration practitioners to assist expats with their permit processes.

“The DHA now claims it needs to see the applicant in person, whereas when an agent applied for a work permit for his or her client, the agent had to present the person’s original passport, which served as adequate proof of that person’s existence,” he explains.

“It seems that the Bill is geared more towards better enforcement of our immigration laws than improving immigration management and helping the business sector create jobs,” he notes.

Further, Watters does not agree with government lifting the moratorium on the deportation of illegal Zimbabwean immigrants at the end of July, currently estimated by the Department to number about 1.5- million people.

“This decision seems to have been driven in some circles by the perception that, for every Zimbabwean in South Africa, there is one less job for a local citizen. However, this is inaccurate,” he notes.

Despite South Africa’s unemployment rate currently standing at about 25%, Watters says the benefits of Zimbabweans and other immigrants, legal or illegal, far outweigh the negative impact.

“Government faces a massive challenge with respect to our youth unemployment numbers and immigration policy is going to become a casualty of this. Ironically, the effects on immigration will also impact on the business sector, which could lead to more unemployment. There appears to be a short-sightedness in the DHA’s thinking currently, possibly with an eye on the next elections and the xenophobia threat, which is a ticking time bomb.”

He says most economic migrants coming to South Africa do so to make money through working for an employer or starting their own businesses and exporting South African products.

Watters asserts that foreigners, thus, not only fill skills gaps in areas where South Africa does not have enough skilled people, and work in jobs that locals do not want to do, but they also create jobs and spend their money locally, which boosts the economy.

“I agree that immigration should be properly regulated; however, government should find a more creative way of dealing with illegal immigrants that will benefit all parties. Simply deporting them is not a solution – it is costly and, as the media have reported widely, many return within a matter of days,” he says.

A further irony, Watters says, is that South Africa has been down this particular road before and is not learning lessons from past mistakes made. “We are also ignoring the lessons learnt in other countries that have tried a range of enforcement strategies. The DHA also seems to be reluctant to engage meaningfully, or at all, with the stakeholders on its revision of immigration policy.”

Substantive Changes
Watters says that, although the DHA initially presented the Bill to Parliament as a document proposing minor amendments, it does entail major policy developments.

These developments include the significant increase in the penalty in the event of a contravention of the law, which will see a preference for criminal cases being defended rather than simply paying the fines.

“This could be helpful in changing foreigners’ sometimes ‘colonial’ view of our immigration laws, making them take them more seriously. They might choose instead to go through the correct procedures to adhere to requirements,” Watters notes.

Another significant policy development pertains to intracompany transfer permits, which, under the current law, are valid for two years only and cannot be extended. However, the Bill stipulates that persons who are in South Africa on such permits will now be able to apply for these permits if they adhere to the prescribed requirements.

Despite these requirements not being announced as yet, Watters’ understanding is that it will tackle this shortcoming.
The Bill also seeks to change the policy of allowing labour brokers to apply for corporate permits, reserving that right for employers.

“The DHA aims to achieve this by more clearly defining the concepts of labour broking and employment,” he adds.

Further, the Bill also suggests a policy of preventing airlines from preboarding undesirable foreigners, such as so-called ‘fugitives from justice’. This will require airlines to send boarding lists for both international and domestic flights to the DHA before passengers board an aircraft.

Watters says prescreening passengers will help protect airlines from being held accountable for bringing undesirable foreigners into the country, an offence that results in signifi-cant fines and the airline having to return the person to the country at which the person boarded, at the airline’s expense.

However, there are several consequences to this, some of which include wrongful denial of boarding passes owing to administrative faults by the DHA, which would need to be revised before the Bill is passed.

Edited by: Shannon de Ryhove
Creamer Media Senior Deputy Editor Polity & Multimedia
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