Immigration Amendment Bill [B5-2016] 24 May 2016

Purpose of presentation To provide an explanation of the mischief/ interpretation challenges that the Immigration Amendment Bill [B5-2016] (“the Bill”) seeks to address; and To brief the Select Committee on the content of the Bill.

Background Interpretation challenges in respect of section 30(1)(h) of the Immigration Act, 13 of 2002 (“the principal Act”). Current wording of section 30(1)(h): “30(1) The following foreigners may be declared undesirable by the Director-General, as prescribed, and after such declaration do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit: (h) any person who has overstayed the prescribed number of times.”

Background S 50(1) of the Immigration Act, 13 of 2002 – before any amendments made thereto – provided that foreigners who left the Republic after the expiry of their permits (now referred to as visas) would be liable to an administrative fine not exceeding R3000. However, the administrative fines imposed were no longer serving as a deterrent. Hence a proposal was made to amend section 30 of the principal Act so as to declare such foreigners who overstayed as undesirable.

Background cont. In order to give effect to the proposal, the new paragraph (h) was included to section 30(1) of the Act by section 20 of the Immigration Amendment Act of 2011. Current section 30(1)(h) of the principal Act reads: “ 30(1) The following foreigners may be declared undesirable by the Director-General, as prescribed, and after such declaration do not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit: (h) any person who has overstayed the prescribed number of times.”

Interpretation challenges In practice, current wording of section 30(1)(h) has been interpreted by some to mean that a foreigner must have overstayed on MORE than ONE occasion before he or she can be declared undesirable. True intention behind section 30(1)(h) was to declare a foreigner undesirable even upon ONE instance of overstay.

Regulation 27 This intention is reflected in Regulation 27 of the Immigration Regulations (of 22 May 2014) – which provides for a person to be declared undesirable for a certain period of time (depending on the length of his or her overstay) even where such person has overstayed for the FIRST time.

Need to address the interpretation challenges In light of the above, a need arose to address the interpretation challenges which the current wording of section 30(1)(h) of the Act poses.

Addressing the interpretation challenges Initially proposals to amend section 30(1)(h) to reflect the true intention; However, subsequent consultation with the Department: proposed that section 32 (dealing with illegal foreigners) be amended by inserting a new clause that makes it clear that foreigners who overstay their visa will be sanctioned; Proposed amendment to section 32 to contain an automatic disqualification for certain visas where persons have overstayed (whereas section 30(1) provides for a declaration);

Addressing the challenges cont Foreigners who overstayed be treated as a category of illegal foreigners; and That section 30(1)(h) be retained in the Act to be used by the Department to declare persons, who have repeatedly overstayed, as undesirable.

Immigration Amendment Bill PC Home Affairs drafted a Committee Bill by amending section 32 of the principal Act; Draft Bill was published for comment on 11 December 2015 in GG 39501 and invitation for comment was also placed in 4 newspapers (City Press and M&G in English; Ipondo in IsiXhosa and Free State News in Sesotho).

Immigration Amendment Bill cont 12 written submissions were received from individuals and institutions ( Forum for Immigration Practitioners SA; Commission for Gender Equality; Banking Association of SA; Agri SA; Imminent Travel and Immigration; HE Enables Engineering; Eben Spannenberg; Mongeze Bomela; SA Migration International; Edinah Lidonde; Relocation Online and the Law Society of SA.)

Content of the Bill Purpose: to amend the Immigration Act, 2002, so as to provide for an adequate sanction for foreigners who have overstayed in the Republic beyond the expiry date on their visa (see long title). Clause 1: amends section 32 of the Act by inserting 2 new subsections into section 32 - namely subsection (1A) and (1B).

Clause 1 cont Subsection (1A) – provides that foreigners who are illegal by virtue of having overstayed will not qualify for a port of entry visa, a visa, admission into the Republic or a permanent resident permit during the prescribed period (disqualified from obtaining a certain visa for a specific period of time). Subsection (1B) allows for the illegal foreigner who has been disqualified to make an application (from outside RSA) to the DG to waive the disqualification where exceptional circumstances exist.

Clause 2 Clause 2: is a consequential amendment due to the insertion of the new section 32(1A) into the Act. It amends section 50 of the Act to make it clear that any foreigner who leaves the Republic after the expiry of their visa will be dealt with in terms of the new section 32(1A). Clause 3: provides for the short title of the Act and also that the Act will come into operation on a date determined by the President.

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