Overhaul of border control and immigration laws on its way

The Department of Home Affairs is proposing a complete overhaul of citizenship, immigration and refugee protection following “loud voices” calling for more effective interventions dealing with migration, according to a statement released at the weekend by Home Affairs minister Aaron Motsoaledi.

The recently released White Paper on citizenship, immigration and refugee protection proposes a radical revision of the Citizenship Act, including the right to citizenship by naturalisation.

Also under the spotlight are the Immigration Act and Refugees Act. These, combined with the Citizenship Act, lack an overarching policy framework and, despite amendments over the years, are often at odds with each other.

“The policy and legislative gaps within the Department of Home Affairs (DHA) have created a fertile ground for violent clashes between foreign nationals and citizens, including [the] emergence of belligerent groups, either siding [with] or against the current migration system,” says the White Paper.

The paper goes on to say barely a day passes without media reports on the failure of the DHA. Even its most visible achievements are drowned out by endless negative reports. The DHA concedes that it has been defeated in most court cases and slapped with court orders of which it has not been aware. “This must change as the fiscus cannot afford more,” says the paper.

No one has any idea how many illegal immigrants are in SA, with estimates ranging between five and 13 million. Immigration Services deports between 15 000 and 20 000 illegal foreigners a year, a figure that is increasing.

The proposed bill seeks to end SA’s porous borders and illegal immigration through improved border monitoring by the BMA (Border Management Authority).

The preamble to the new integrated Immigration Bill must allow for simplified and faster temporary and permanent residence permits based on “objective, predictable and reasonable requirements”.

“In essence, the proposal is to couple border control with immigration,” according to the White Paper, which recommends a review of the Border Management Authority Act to align it with the new policy framework.

The DHA admits that the visa and permanent residence system is being abused, sometimes in collusion with DHA officials. The department is taking steps to uncover and withdraw fraudulently issued permanent residence permits and passports, and ID documents. The Anti-Corruption Unit within the SA Police Service should be seconded to the DHA to assist in this process because of its broad statutory powers and ability to conduct search and seizure arrests.

Also under consideration are Immigration Courts to assist in dealing with decisions by the DHA director-general, minister and other officials. The existing legislation allows for abuse by illegal foreigners who can launch urgent high court proceedings to halt deportation, then later “disappear into thin air”.

To expedite matters, the White Paper proposes setting up independent bodies to deal with appeals and reviews. These could include an Immigration Appeal Division and a Refugee Protection Division.

The Citizenship Act and Births and Deaths Registration Act must be repealed in their entirety and be included in a single piece of legislation dealing with citizenship, immigration and refugee protection. Motsoaledi says this will remove contradictions and loopholes in the paths towards citizenship, as is now the case with the three pieces of legislation.

A proper register should be kept for everyone granted citizenship by naturalisation and tabled annually in parliament by the minister.

The DHA says these proposals align with legislation in other countries, such as Canada and the UK.

Refugee protection

One proposal to deal with refugees is to establish a system similar to the Netherlands where cases can be heard at ports of entry, presided over by highly qualified legal personnel, such as sitting or retired judges.

The Minister of Home Affairs should be able to refuse entry to an asylum seeker who had prior access to a “first safe country’, which is an international principle that refugees, before their arrival in the country where they are seeking asylum, have travelled through an alternative country that could have offered them asylum protection.

Overworked DHA officials

The current visa system is unworkable as DHA members are overworked, says the White Paper. Appeals and reviews are dealt with by the minister and director-general, creating an impossible workload. This task should be dealt with by a newly-established Immigration Division.

The current Refugees Act prohibits refusal of entry, expulsion or extradition of asylum seekers and refugees.

SA acceded to various international agreements in 1996, such as the 1951 United Nations Refugees Convention and the 1967 Protocol relating to the Status of Refugees, without registering any reservations. This was a serious mistake by the then government, says Motsoaledi.

The White Paper proposes that the government review and possibly withdraw from the 1951 Convention and the 1967 Protocol to accede to them with reservations, as other countries have done.