Immigration Bill: Departmental briefing and deliberations

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
24 April 2002
IMMIGRATION BILL: DEPARTMENTAL BRIEFING AND DELIBERATIONS

Chairperson: Mr DA Mokoena (ANC)
Ms L Jacobus (NCOP, ANC)

Documents handed out:
Preliminary Submission: Reaction to public hearings on the Immigration Bill

SUMMARY
The Department of Home Affairs presented its submission to the Committee in reaction to the public hearings. It wished to eliminate issues that were not important to the Bill and focus attention to the relevant issues. It was highlighted that some of the presentations reached erroneous conclusions, because issues were condensed and certain facts and legal aspects were ignored.

MINUTES
Dr Mario Ambrosini (Special Advisor to the Minister), Advocate Lambinon, and Advocate Malatje representing the Department of Home Affairs (DHA) presented a submission wishing to offer them the benefit of a full picture before the clause-by-clause deliberations on the Bill commenced.

Dr Ambrosini proceeded to read out the submissions to the Committee. It was agreed that questions would be posed and matters cleared up only when the Committee would start the Clause-by-Clause deliberations.

Afternoon Session
The Chairpersonperson, Mr Mokoena, advised that Ms Jacobus had to attend to other matters and would not co-Chairperson the meeting. He suggested that the Committee start its Clause-by-Clause deliberations by skipping the definitions section and reverting to it later. The Members agreed to this suggestion. He then suggested that a prototype Bill be drafted together with the amendments so that when the Committee votes on the Bill they will not rely on memory.

Clause 2: Admission and Departure
Ms Van Wyk (UDM) said that she has a problem with the language used in the Bill. She referred to the word "officer" and suggested that it be substituted with "official".
The Chairperson suggested that the word "officer" is vague, and should be qualified with "immigration officer" throughout the Bill. The committee agreed to this.

Mr Grobler (DP) said that the words "other than a port of entry" in line 40 needed clarification.

Mr Lambinon gave the example of the President who feels that it is convenient to leave the country on an urgent meeting not from an officially designated airport, but another smaller airport, and said that this situation covers the meaning of "other than a port of entry".
Advocate Malatje said that under normal circumstances, no person should be allowed to enter or depart other than from a port of entry, however if you do not make exceptions to this rule, problems can arise.
The Chairperson asked if it was wise to include these exceptions, encumbering the Bill and causing a delay in deliberating over them.
Mr Lekgoro said that when an exception to the law is not taken care of it becomes an offence. He asked if this Clause will cater for the cross-border communities and address their plight of having difficulty in walking to the border and obtaining their passes before crossing over.

Dr Ambrosini replied that the present position in the Aliens Control Act is widely used for people who want to depart from a private airport such as Lanseria, and said that very often Ministers leave from these airports. He said that during a regatta, ships or boats leave from ports other than ports of entry.
Mr Skhosana (ANC) said that the way this is stated in the Clause will cause a problem, and when a person enters from a certain port and knows that he has to leave from it, why would he want to leave from another port of entry?

Mr Smith (IFP) asked whether the process of creating trans-national parks, whereby entry from one point, and driving through it could lead into another country, has been catered for in the Bill.

The Chairperson suggested that these issues be flagged and proposed that the Committee move onto another issue.

Mr Smith said that the use of the word "valid" in Line 49 does not presuppose that that one will be issuing invalid permits.

Mr Chikane (ANC) said that a person could have an expired permit and that would not be valid.
The State Law Advisor said that excessive caution has been taken in the Bill. If a fraudulent document is in somebody's possession, that is not a valid document.
Mr Smith said in that event the word "valid" should be carried throughout the Bill to read "valid passport" valid permit" and so on.

The Chairperson suggested that the committee move on and that "immigration officer" be retained and the issue of "other than a port of entry" be flagged and re-visited.

Clause 3: Temporary Residence Permits
The Chairperson suggested that is it fine and looks straightforward.

Mr Chauke (ANC) referred to Clause 3(5), line 5, and the requirement of "good cause", and said that it adds nothing to the Bill by including it.

Dr Ambrosini said that it is something that will enable the Department to tailor permits to the specifics of the circumstances.
Advocate Malatje said that the words "good cause as prescribed" cannot be defined as it is circumstantial.
The State Law Advisor said that they are changing drafting conventions, and this is old terminology. He said that if he had a choice he would exclude these words as they are trying to make drafting simpler.

Mr Lekgoro (ANC) asked, in respect to Clause 3(3), who issues a permit outside the Republic; whose decision is it to issue the permit, Pretoria or the person overseas.
Advocate Lambinon said that there are Home Affairs officials at numerous offices around the world and permits are issued there.
The Chairperson asked if the High Commissioner in Harare were to issue it how does Home Affairs in South Africa become aware of the permit.
Advocate Lambinon said that related to the issuing of the permit or visa that is done overseas and when a person reports to the immigration officer an entry permit is granted to a person when he announces himself at the port of entry.

Dr Ambrosini said that if one is outside the Republic the Home Affairs official in the High Commission, which is on our pay roll, would issue the permit in terms of the law. This Clause makes sure that there is no right to a temporary residence permit unless there is admission through the port of entry.

Mr Kalako suggested that the Clause be flagged and revisited.

Clause 4: General entry permit
Mr Grobler (DP) referred to Clause 4 (1)(i) line 16 and asked about the possibility of exceeding it to six months.
Mr Kalako asked for clarification on the Clause and asked for a definition of "the general entry permit".
Mr Chauke suggested that he is not sure whether this Clause should be retained here.

Dr Ambrosini said that it goes back to the entire philosophy of the Bill. In respect of the three month period, this category is created to track people that are coming in for short periods of time and as long as they are not working in the country, and in this regard tourists or people on short study courses or medical treatment rarely stay longer than three months. However they can apply for an extension and this needs to be dealt with.

The Chairperson suggested that it be flagged.

Mr Smith said that he does not see the link between the provisos in Clause 4 (1) (i) and (ii). What is the link between the activities?

Dr Ambrosini said that in the first proviso it can be renewed once upon application, and in the second proviso it is a condition and the qualifications herein are different from those of the first proviso.
Mr Smith asked whether the word "and" after the first proviso should be retained or changed to "or".
The State Law advisor said that depending on what one wants to achieve and capture here, it is either one condition or the other He said that there is as decided case which discourages one from using the words "and" and "or". He said that the "and" becomes a conjunction and links the two provisos.

Mr Kalako asked for clarification on Clause 4(4).
Mr Lambinon said that in the Aliens Control Act the Section 41 permit is referred to and provides that if a person is found to be an illegal he must be given some form of right to be in the country.

Clause 5: Diplomatic Permit
Mr Chauke asked if this Clause should be in this Bill as it is dealt with at Foreign Affairs level.
Mr Grobler said that you should not have different people looking at different permits that are issued. He said that Diplomats are people and should be kept in one Department.

Ms Mars (IFP) said that Clause 5 complies with the Vienna Convention and there is rationale for this Clause. She said that one should not impede on the Department of Foreign Affairs accreditation of diplomats but it is a question of the people who come to them and that is the purpose of this section.

Mr Kalako said that his point is that you cannot subject Diplomats and their accreditation with the DHA, and the normal migration process and politically this is going to lead to problems.

Dr Ambrosini said that there is a distinction in law between accreditation and migration clearance. These are two different concepts and migration clearance has nothing to do with accreditation. The question that arises is once they have been accredited what happens to the passports, who stamps it and what is written on it.

The Chairperson asked what is wrong with the present system.

Dr Ambrosini said that there is a move away from the lack of clarity and the major concern is to have everybody on the common registry and on the movement control regime. He said that for example the American Embassy has about 6000 people, and one needs to know who they are otherwise they would be in South Africa without identification documents.

Mr Chikane (ANC) said that this section is badly drafted, and the word "may" implies that there is a discretion, which is misleading.

Ms Van Wyk said that she supports Mr Chikane and that there is an over-elaboration in the Bill.
The Chairperson suggested that the drafters consider replacing "may" with "shall".

Clause 6: Student permit
Mr Skhosana said that perhaps it should read "study permit".

The Chairperson said that the Committee should take into account the views expressed by Prof Mayatula, Chairperson of the Portfolio Committee on Education. He said that he strongly feels that that it is a mistake that the "institution of learning" is not defined in the Bill.

An ANC Member added there is no definition of "good standing" in the Bill either.
Mr Lambinon said that there is no objection to defining "institution of learning" and "good cause".
Dr Ambrosini added that the Bill is trying to emphasise the length of study and not the type of study to be undertaken.

Mr Makoela (ANC) said that he wanted clarity on the issue of what happens in a school and in a tertiary education institution: are people in school learning or studying there? He said that the question of a study permit made him raise this question as what type of permit does a ten year old child receive.

The meeting was adjourned.