Presentation to the Portfolio Committee on Labour 16 August 2011 PRESENTATION ON― How amended Immigration Act will address the presence of foreign nationals in the SA labour market Presentation to the Portfolio Committee on Labour 16 August 2011 Caring, compassionate and responsive

TABLE OF CONTENTS Purpose Background Problem Statement (definitions and proposals) Objectives Proposed Amendments (Clause by clause) Caring, compassionate and responsive 1 2

2. BACKGROUND South Africa is part of a global village and it manages the movement of people, into and out of its boundaries, who travel for purposes of: Investing their financial resources in the economy; Contributing to social and cultural development; Investing their skills and experience in order to promote economic growth; Promoting tourism; and Facilitating academic exchanges within SADC. South Africa is also a member of the UN and a signatory to the Convention and Protocol relating to Refugees. Caring, compassionate and responsive 1 3

3. PROBLEM STATEMENT 1. The Act allows for foreign nationals to change their status within the country and this leads to them entering the country under false pretence, for example as tourists instead of their true nature. Caring, compassionate and responsive 1 4 4

3. PROBLEM STATEMENT (cont…) 2. Lack of policy and legislative framework to differentiate the management of economic migrants and asylum seekers has contributed to a clogging in the asylum system and lack of measures to manage low skilled immigrants. Caring, compassionate and responsive 1 5 5

3. PROBLEM STATEMENT (cont…) 3. Poor management of risks associated with the adequate screening of foreign nationals who seek to enter South Africa. 4. Securing our borders and ports of entry against major risks and threats while facilitating the movement of persons and trade. Caring, compassionate and responsive 1 6 6

3. PROBLEM STATEMENT (cont…) 5. The use of the term permit for certain types of temporary residence permits creates a wrong impression on the recipients, that he/she can be in the country for a medium to longer-term than intended. The use of terminology is not consistent with international practise as permits in other countries, are generally, for longer stays and visas for shorter stay. 6.The current penal provisions are not serving as effective deterrents and require revision in order to contribute to effective administration and prevent corrupt activities. Caring, compassionate and responsive 1 7 7

4. OBJECTIVES delete certain wording of the Preamble to the Act, The main objective of the Amendment Bill is to— delete certain wording of the Preamble to the Act, substitute, insert or delete certain definitions, provide for the designation of ports of entry, revise the provisions relating to the Immigration Advisory Board, revise provisions relating to the making of regulations, Caring, compassionate and responsive 1 8 8

4.… OBJECTIVES revise provisions relating to visas for temporary sojourn in the Republic and for the procedures with regard thereto, provide for the mandatory transmission and use of information on advance passenger processing, provide for the transmission of passenger name record information, revise provisions relating to permanent residence, to revise penal provisions. Caring, compassionate and responsive 1 9 9

4. PROPOSED AMENDMENTS Caring, compassionate and responsive 1 10

Clause 5… Amends section 7 of the Act AMENDMENTS: Section 7 of the Act is amended in order to effect consequential amendments regarding the change of certain permits to visas, as well as to make provision for the charging of fees for advanced passenger processing and passenger name record information transmission. Caring, compassionate and responsive 1 11

… Clause 5 Current: Section 7(1)(k) prescribed for the making of regulations regarding terms and conditions pertaining to immigration practitioners. Amendment: This is a consequential amendment as the provision relating to immigration practitioners is repealed. (See clause 23 of the Bill). Caring, compassionate and responsive 1 12 12

Clause 6 Amends section 9(3)(a) of the Act CURRENT: Section 9(3)(a) of the Act provides that no person may be admitted into the Republic unless in possession of a passport unless such a person is a child under the age of 16 years, accompanied by his or her parent who holds a passport in which his or her name was entered. Caring, compassionate and responsive 1 13 19

Clause 6 (continues…) AMENDMENT: Clause 6 amends section 9(3)(a) of the Act in order to make it a requirement that a child must possess his or her own passport. Caring, compassionate and responsive 1 14 14

Clause 6 Inserts section 9A in the Act CURRENT: The definition of “port of entry” empowers the Minister to designate a place of entry or exit, which is not a proper drafting style. AMENDMENT: Inserts section 9A in the Act in order to make provision empowering the Minister to designate any place, which complies with prescribed requirements, as a place of entry or exit. Caring, compassionate and responsive 1 15

Clause 7… Amends section 10(2) and (6) of the Act CURRENT: Section 10(2) of the Act makes provision for a foreigner to apply one of the temporary residence permits contemplated in sections 11 to 23 of the Act. Sub section (6) allows a foreigner to change his or her status whilst in the Republic. Caring, compassionate and responsive 1 22

…Clause 7 Amends section 10(2) and (6) of the Act AMENDMENT: Amends section 10(2) of the Act in order to revise provisions relating to visas and permits for temporary sojourn in the Republic. Further amends section 10(6) to provide that the change of conditions and status attached to a permit or visa will be made in exceptional circumstances and be approved by the Minister. Caring, compassionate and responsive 1 17 17

The following permits will be called visas: “PERMITS” TO “VISAS” The following permits will be called visas: Visitor’s permit; Study permit; Treaty permit; Business permit; Crew permit; Medical treatment permit; Retirement permit; and Exchange permit. Caring, compassionate and responsive 1 18 18

Clause 11 Amends section 15 of the Act Current: Section 15 of the Act does not prescribe the kind of business that the foreigner intends to establish or invest in. Amendment: Amends section 15 of the Act in order to make provision for the issuing of a business visa to a foreigner who intends to establish or invest in a business that is “prescribed to be in the national interest”. Caring, compassionate and responsive 1 19

Clause 12 Amends section 19 of the Act… Current: Section 19(1) of the Act provides for the Issuing of a quota work permit. Amendment: Repeal section 19(1) of the Act. The quotas published for quota work permit, are similar in certain respects to those issued with an exceptional skills work permit. Therefore, the proposal is to create one permit called critical skills permit (see clause 12(d) of the Bill). Caring, compassionate and responsive 1 20 20

Clause 13… Amendment: Furthermore, this clause substitutes section 19(5) of the Act in order to move the requirements for the issuing of an intra-company transfer work permit to the Regulations. The intra-company transfer work permit will be issued for four years once the Immigration Act, 2007 is brought into operation. Caring, compassionate and responsive 1 21 21

Clause 13 Amendment of section 21 of the Act… Current: Section 21(1) of the Act does not prescribe the sectors that qualifies to be issued with a corporate permit. Amendment: Substitutes section 21(1) of the Act in order to make provision for the issuing of a corporate permit to a corporate applicant who conducts business in the sectors that are published in the Gazette from time to time. Caring, compassionate and responsive 1 22 22

…Clause 13 Current: Section 21(5) of the Act provides that the holder of a corporate permit may also employ persons in terms of section 19 of the Act. Amendment: Section 21(5) is being repealed. This provision creates interpretation problems and there is already judgement hereon that purports that the said permit is another permit. Caring, compassionate and responsive 1 23 23

Clause 14 Amendment: deletes section 22(b) of the Act that dealt with an exchange permit for persons under the age of 25 years of age who has received an offer to conduct work for no longer than one year. Under this provision, exotic dancers were being issued with the exchange permit which looking at the type of work being conducted, it is not in line with the principles of exchange programmes. Caring, compassionate and responsive 1 24 24

Clause 15 Current: Section 23(1) of the Act provides for the issuing of an asylum transit permit valid for 14 days. Amendment: Amends the validity period to 5 days for reporting to the nearest Refugee Reception Office and further provides for a procedure for establishing whether or not such a person qualifies for making application for asylum. Caring, compassionate and responsive 1 25 25

Clause 16 Repeals section 24 of the Act Current: Section 24 of the Act provides for the issuing of a cross-border and transit permit to specified foreigners. Amendment: Repeal of section 24 of the Act. There are certain security risks that emanate from the requirement that holders of cross border permits may not report to an immigration officer. Caring, compassionate and responsive 1 26 26

Clause 17 Amends section 26 of the Act Current: Section 26 does not prescribe the requirements for the issuing of a permanent residence permit. Amendment: Amends section 26 of the Act in order to make provision for prescribing requirements for the issuing of a permanent residence permit. Caring, compassionate and responsive 1 27 27

Clause 18 Amends section 27 of the Act Current: section 27(a) of the Act does not provide for prescribing requirements for the issuing of a permanent residence permit. Amendment: Amends section 27(a) of the Act by making provision for prescribing requirements for the issuing of a permanent residence permit. Caring, compassionate and responsive 1 28 28

Clause 18 (continues…) Current: Section 27(c) of the Act does not prescribe that a business that a foreigner intends to establish or has established in the Republic must be prescribed in the national interest. Caring, compassionate and responsive 1 29 29

… Clause 18 Amendment: This clause further substitutes section 27(c) of the Act in order to provide that a business that a person intends to establish or has established in the Republic must be a business prescribed to be in the national interest. Caring, compassionate and responsive 1 30 30

Clause 19 Amendment of section 29 of the Act Current: Section 29(1) does not include the crimes of human smuggling and trafficking in persons as part of a list of crimes that may result in the listing of a person as a prohibited person. Amendment: Substitutes section 29(1)(b) and (f) of the Act in order to insert the crimes of human smuggling and trafficking in persons to the list. Caring, compassionate and responsive 1 31 31

Clause 20 Clause 20 provides, as a consequential amendment to section 50(1), for the declaration of persons who overstay in the Republic for a prescribed number of times as undesirable. Currently such persons are fined a prescribed amount and that is no longer deterrent enough. Caring, compassionate and responsive 1 32 32

Clause 21 Amendment: Section 35 of the Act in amended in order to insert new provision for mandatory provision for advance passenger processing and submission of passenger name record information by owners of or persons in charge of conveyances. Caring, compassionate and responsive 1 33 33

Clauses 22 and 23 Clause 22 amends section 43 of the Act in order to effect consequential amendments regarding the change of certain permits to visa. Clause 23 repeals section 46 that dealt with immigration practitioners. Caring, compassionate and responsive 1 34 34

Clause 24 Current: The penalties for offences listed in the Act are no longer deterrent enough. Amendment: Amends section 49 of the Act in order to increase penalties and provide for imprisonment without an option of a fine in cases of e.g. crimes involving public servants. Caring, compassionate and responsive 1 35 35

Clause 25 Amends section 50 of the Act Current: Section 50 provides for imposition of administrative fines. Amendment: Amends section 50(1) by providing that persons who overstay must be dealt with in terms of section 29. Addition of subsection (4) to provide for an administrative fine for non-compliance with provisions relating to advance passenger processing. Caring, compassionate and responsive 1 36 36

Caring, compassionate and responsive THANK YOU SIYABONGA RE A LEBOGA 1 Caring, compassionate and responsive