The immigration bill from a human rights perspective

Zonke Majodina

1. Introduction
The passing of new immigration legislation has been long awaited in South Africa. The Aliens
Control Act (“ACA”) is the last major piece of Apartheid era legislation that must still be redrafted.
The drafting of new immigration laws provides us with an opportunity to erase discriminatory
legislation from our statute books as well as the exciting opportunity of bringing our law in line
with modern international trends and developments within the human rights sector that articulates
the rights of immigrants more clearly now than in the past. This new legislation provides South
Africa (“SA”) with the opportunity to create a new and modern piece of legislation that is in
keeping with our own constitutional democracy. Furthermore, it presents an opportunity to tackle
the failings of the current system and address the challenges that will face us in the coming years.
Lastly, it is important to stress that there is no better time than now to address the imbalances
caused by racially based immigration laws and policies of the ACA.

The South African Human Rights Commission (“SAHRC”) prepared submissions during 2000 on
both the White Paper on International Migration as well as the draft Bill. We identified six major
areas of concern.
i) The need to manage rather than control migration against the background of SA’s
international and regional obligations
ii) The fight against xenophobia and racism
iii) The application of the bill of rights to non-citizens
iv) The proposed appeal procedures
v) Places of detention
vi) The risk of corruption

2. Our International Obligations

In terms of the Universal Declaration of Human Rights1 immigrants and migrants are afforded the
protections as pledged by the member states. The pledge includes the intention to achieve, in co-
operation with the United Nations, the promotion of universal respect for and observance of human
rights and fundamental freedoms. Under international law, according to Article 2 of The
International Covenant on Economic, Social and Cultural Rights and Article 13 of The
International Covenant on Civil and Political Rights, once a state has admitted aliens into its
territory (documented immigrants), it must treat them according to internationally determined
standards. International human rights law gives many rights to lawful aliens. Some of these include:

1
Articles 6, 9, 13, 15,

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Ø the right to residence;
Ø freedom of movement; and
Ø economic and social rights.

This means that aliens should be given the same human rights as state nationals, with the exception
of certain aspects of:
Ø political rights;
Ø participation in political or public life;
Ø ownership of property;
Ø employment; and
Ø the right to remain in the territory.

Illegal aliens are not lawfully in the territories of states other than their own. They can be removed
once they are found to be illegal. However, because they are human beings, they are nevertheless
entitled to some basic rights. These include the rights to:
Ø dignity;
Ø freedom and security of the person; and
Ø life.

South Africa has, since April 1994, ratified or acceded to several international human rights treaties
that have a bearing on the treatment of aliens. These are:
Ø The Convention on the Rights of the Child (1989), ratified on 16th June 1995;
Ø The Convention on the Elimination of All Forms of Discrimination Against Women (1979),
ratified on 15th December 1995; and
Ø The African Charter on Human and Peoples’ Rights (1981) acceded to in January 1996.

South Africa has yet to sign and ratify the 1990 International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families.2 This Convention is based on the
principles contained in the Universal Declaration of Human Rights.

3. The SAHRC’s concerns with the bill

3.1 Management in the context of South Africa’s obligation to the region
An informed approach to any legislation on immigration must be based on a clear understanding of
current immigration trends in a given country’s geographical region. In South Africa, this means
that we must understand why people are attracted to come to this country. Much has been written

2
The National Action Plan for the Promotion and Protection of Human Rights, Republic of South Africa, December
1998 at p 75

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about the ‘push-pull’ factors 3, in short, factors that determine why people want to leave their
country of origin and why they choose a particular destination. In our case there is a whole history
to this phenomenon. This goes back to the discovery of minerals in South Africa in the last century,
when, many people from neighbouring countries came to work in the mining industry. The mining
sector continues to employ many people from our neighbouring countries. The economic situation
coupled with high rates of unemployment in our neighbouring states has resulted in a great
dependence on this form of employment, in the entire sub-region.

The Bill deals with migration by making provision for a number of temporary residence permits to
be issued to appropriate foreigners. What stands out is the fact that the Bill does not take our
historical reality into account. Rather, priority is on providing permits to investors, entrepreneurs
and people who promote trade and are seen as bringing new knowledge, skills and expertise. None
of the permits specifically deal with the position of migrant workers and traders. The permits
provided for are as follows:
Crewman permit; Medical permit (holder may not work); Relatives Permit; Work
permit; Retired person’s permit; Exceptional skill or qualifications permit; Intra-
company transfer permit; Corporate permit; Exchange permit (only applicable to
persons under 25 years of age); Asylum; and Cross-border and transit passes.

The solution offered by the Bill is to accommodate farm and mining migrant workers under the
corporate permit (White Paper, Chapter 7, paragraph 7 and Section 16 of the Bill). Upon
application, domestic and foreign businesses intending to relocate human resources to South Africa
could receive permission to import a certain number of people. Such business would be handling
the visas as well as the work permits directly on the basis of a delegation from the Department of
Home Affairs. In order to receive the delegation a corporation will have to meet certain
requirements laid down by Section 16(2) of the Bill.

This sort of approach fails to take due regard of both our historical reality and regional obligations.
It encourages both illegal migration and negates the reality of the existence of many migrant
workers already active in the country. Research has shown that ‘Costing’ immigration implies that
immigrants only consume resources: they do not create them. But anyone who engages in economic
activity also creates wealth—and it is generally accepted that immigrants do engage in this activity.
A Centre for Policy Studies report found, for example, that Mozambican immigrants in the Ivory
Park informal settlement at Midrand are sought-after builders, and there is no shortage of evidence
which indicates that many immigrants are engaged in trade and service industries. For some, the
fact that immigrants are creating wealth is part of the problem because they are seen to be “taking”
jobs or trading opportunities needed by South Africans—often at lower rates of pay or by evading
trading regulations.4

3
Clarence Tshitereke Revisiting the push-pull theory: Comment on the White Paper on International Migration
Southern African Migration Project; The White Paper at Chapter 6 paragraph 4.2.1; The Green Paper at section 2.2.
4
Steven Friedman Migration Policy, Human Rights and the Constitution undated paper submitted to the Task Team
drafting the Green Paper found at http://www.polity.org.za/govdocs/green_papers/migration/friedman.html

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It appears then that the temporary residence chapter of the Bill merely restates the premise of the
White Paper that South Africa is not in a position to address and alter conditions in the rest of the
continent and therefore we are not in a position to develop a migration policy to deal with migrant
workers. An obvious counter-approach, which the SAHRC maintains, is that we should adopt a
management-oriented approach towards migration. Such an approach will not only be in line with
South Africa’s historical regional obligations, specifically towards Southern African Development
Community (“SADC”) countries, but will also be more in line with the governments stated policies
on the New Partnership on African Development (“ NEPAD”) and the African Union.

Indeed, the Green paper stated that “International economic prospects for countries are increasingly
tied to their ability to function within regional groupings of states. Many of these emerging regional
blocs are also developing new migration regimes with preferential treatment and mobility rights for
citizens of member states. The European Union represents the most advanced model of such
arrangements. The 12-member SADC is at a far less advanced stage of integration and needs to
develop its own policies of economic co-operation, integration and population movement.

South Africa is a closely integrated member of a functioning region. The neighbouring states are
linked to South Africa by long-standing economic ties. One of the most important linkages of
mutual benefit historically has been the existence of labour flows to and from South Africa.
Immigration policy should be sensitised to this history of the region and South Africa's long-
standing economic ties to the SADC states.5

A more effective approach would be to adopt a humane management-orientated approach to

migration policy, which recognises both our moral and historical ties to the region. This could be
achieved by ensuring that our development policies take into account our regional obligations, for
example, the Maputo Corridor has benefits for both South Africa and Mozambique.6 A further
solution would be the implementation of bilateral agreements between South Africa and its
neighbours, whereby migrant workers would be subject to the same labour standards, benefits and
wage agreements as South African citizens. In this way, the notion of ‘cheap, non-unionised’
labour for certain sectors falls away as a benefit, and this incentive to prefer migrants over citizens
is removed. The migrants would benefit from these agreements as they would be entitled to the
protection of both the South African labour laws and wage agreements in the industry.7

5
The Green Paper paragraphs 1.4.1. and 1.4.2.
6
The Green Paper paragraph 1.4.5.
7
Dr Jonathan Crush in Temporary Work and Migration Policy in South Africa in a Briefing paper for the Green Paper
Task Team on International Migration, February 1997 stated that “Undocumented temporary workers in the
agricultural sector, construction, transportation and services, have either entered the country clandestinely or
overstayed their temporary residence permits or secured false documentation. Employers in those sectors using
temporary workers have traditionally been able to exert sufficient power over the central or local state to avert large-
scale prosecution for their use of this labour. This is a calculated risk on the part of employers who either do not
enquire too closely about the origins of their workers or do not particularly care as long as the labour is available
and cheap. South African employers of temporary labour undoubtedly want to continue to employ workers from
outside the country. Ironically, it is their very illegality that makes them attractive as employees although employers
tend to claim that South Africans will not accept the work at the wage rates they can afford. It is this situation that
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4. Xenophobia and racism
The Bill fails to address the issue of xenophobia and how it interacts with migration policy, in any
substance. Section 29(1) of the Bill lists the obligations of the Department of Home Affairs, which
include the prevention and deterrence of xenophobia within the Department of Home Affairs, the
government, all organs of state and at community level. Moreover, one of the functions of the
Department of Home Affairs according to subsection (2) is to educate communities and organs of
civil society on the rights of foreigners, illegal foreigners and refugees, and to conduct other
activities to prevent xenophobia.

Laudable as these objectives and functions are, however, the Bill pays lip service only to the
eradication of xenophobia and racism, as is apparent from certain draconian and xenophobic
provisions of the Bill. Paragraph 12 of the SAHRC submission 2000, reads as follows:
‘The Bill contains no substantive provisions to address xenophobia and racism
other than the vague statements set out above; The policy background of the Bill,
as set out in paragraph 1 above, implicitly enforces the public perception that
foreigners, particularly from Africa, “steal jobs” from South Africans, are
criminals and only deplete our already exhausted natural and other resources. As
long as the government persists with a migration policy to the effect that South
Africa’s sovereignty is under threat and that it must isolate itself from its SADC
neighbours in order to protect its citizens and resources from exploitation by
outsiders, xenophobia will be encouraged rather that eradicated; In its original
submission, the SAHRC raised the concern that “community based policing will
result in a form of institutionalised racism, reminiscent of apartheid”’.

The Bill dedicates an entire chapter to the duties of various natural and legal persons to police the
enforcement of its provisions. A number of legal presumptions are also created that shift the burden
of proof from the state to the accused person, in certain cases.

It is unfortunate that the Bill introduces a community based enforcement policy thereby moving
emphasis away from border control to community and workplace inspection.8 Although the
SAHRC understands the notion that to tighten up the borders has proved to be ineffectual in the
United States of America and expensive to implement, the community based policing proposal will
result in a form of institutionalised racism, reminiscent of apartheid.

South African policy makers are increasingly concerned about. The concern is not so much with the working and
living conditions of temporary workers per se, but with the impact that undocumented workers have on
unemployment and wage levels among South Africans. There is a widespread perception, amongst the general
public as well as a broad spectrum of policy makers, that “illegal” temporary workers deprive South Africans of jobs
and depress wage levels, as well as cause a whole host of other social problems. In fact, there is little or no concrete
evidence to substantiate these claims.” Found at
http://www.polity.org.za/govdocs/green_papers/migration/crush2.html
8
The White Paper, Chapter 1.

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The history of migration policy in South Africa is deeply steeped in racism: To start with, it is
necessary to recall that the Aliens Control Act, which makes residence here a gift bestowed by the
authorities, was originally a racial law, since it stipulated that those granted permanent residence or
citizenship must be “readily assimilable by the white inhabitants”; the authorities also had to satisfy
themselves that immigrants did not threaten “the language, culture or religion of any white ethnic
group”. Even after this clause was abolished, the application of the law often excluded black
immigrants.9

It could, therefore, be argued that many black immigrants have failed to acquire legal status simply
because of their race, since their length of residence and role in the job market would have ensured
their legality were they white. While the amnesty implemented by the government last year
attempted partly to rectify this, its effect has been limited. The fact that most immigrants against
whom control is currently exercised are black can—and has—been seen as an indication that
aspects of apartheid remain in force.10

For example, in terms of Section 41 all employers shall make good faith efforts to ascertain that he
or she employs no illegal foreigners and to ascertain the status of all his or her employees. If it is
proven that an illegal foreigner was employed, it is presumed that the employer knew that the
person was an illegal foreigner, unless the employer proves differently. Furthermore, if an illegal
foreigner is found on any premises where a business is conducted, it shall be presumed that such
foreigner was employed by the person who has control over such premises, unless that person
proves the contrary. Upon conviction in terms of these provisions, a person may by jailed for 18
months or fined R75 000,00.

Learning institutions are under a similar obligation to ascertain the status of all persons employed
by, or associated with the institution. Section 42(2) provides that where an illegal foreigner is found
on any premises, it shall be presumed that such foreigner was receiving instruction or training from,
or allowed to receive instruction or training by the person who has control over such premises,
unless the contrary is proven. A conviction in terms of Section 42(2) also carries the penalty of 18-
month incarceration or a fine of R75 000,00.

Places offering overnight accommodation are under an obligation to make a good faith effort to
identify the status of its guests and must report to the IS any failure to effect identification (Section
43(2)). In the event that an illegal foreigner is found on such premises it shall be presumed that the
foreigner was harboured by the person who has control over such premises, unless the contrary is
proven. Penalties are the same as in the above three cases.

These provisions are aimed at galvanising South African citizens and residents into action in order
to remove illegal foreigners from the country. When these detailed and rather daunting duties and

9
Migrant miners, for example, did not qualify for permanent residence—more generally, a stipulation that self-
employed immigrants require cash assets of R50 000 excludes most immigrants from neighbouring countries who
lack these funds.
10
See Friedman op cit. at note 8.

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obligations are weighed against the meagre anti-xenophobia policy statements contained in the Bill,
it becomes clear that the Bill sanctions rather than eradicates xenophobia at all levels in South
Africa. Moreover, the legal presumptions the Bill creates may be unconstitutional and contrary to
the right to remain silent and not to testify during proceedings, as guaranteed by Section 35(3)(h) of
the Constitution.

Of even greater concern is the proposed requirement that any person shall identify him or herself on
demand. However, Section 44 goes even further to provide that if, when requested to do so by an
immigration officer or police officer, the person is not able to satisfy the officer that he or she is
entitled to be present in South Africa, such officer may take that person into custody without a
warrant and detain him or her until that person’s prima facie status or citizenship has been
ascertained.

Section 48 of the Bill goes further to state that any institutions or persons other than organs of state
may be required by regulations to endeavour to ascertain the status of any person with whom they
enter into commercial transactions and shall report illegal foreigners to the Department of Home
Affairs.

In response to these draconian provisions we can only repeat and endorse the SAHRC’s earlier
comments on this aspect of the Bill:
“This policy is firmly based on the apartheid policy where people were constantly
harassed to assert their right to be in South Africa. Because of the nature of
xenophobia in South Africa, as practised by both citizens and authorities, the
largest number of people falling foul of this enforcement policy will be black
South Africans. In particular, people who are darker skinned will more often be
‘accused’ of being illegal immigrants and therefore subject to institutionalised
harassment. To enact legislation which institutionalises this policy will fall foul
of the Constitution and be open to Constitutional challenge.”

5. Application of the Bill of Rights to non-citizens

In its submission to the Portfolio Committee the SAHRC called for migration policy to affirm that
all of the rights contained in the Bill of Rights, with the exception of political rights, the right
relating to freedom of trade, occupation and profession, apply to all persons who are affected by
government action, including non-citizens. The reasons for this call by the SAHRC are clear: any
immigration policy should be informed by a basic respect for human rights and the state should be
compelled to guarantee the human rights of all those within its territorial domain. Unfortunately, the
drafters of the Bill have not expressly followed this recommendation. In the Chapter dealing with
the Department of Home Affairs, the following is listed as one of the objectives of the Department
of Home Affairs:
“29(1) In the administration of the Act, the Department of Home Affairs shall
pursue the following objectives: ‘promote a human-rights based culture in both
government and civil society in respect of migration control’. Later on in the same
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 section, the Department of Home Affairs is given the function of educating
communities and organs of civil society on the rights of foreigners, illegal
foreigners and refugees and conduct other activities to prevent xenophobia
(Section 29(2)(d)).

Whilst the affirmations are welcomed it is regrettable that they were relegated to the Chapter
dealing with the Immigration Services (“IS”) and that they were not afforded the weight due to
them by inclusion of an opening “objectives” section of the Bill. In so doing, the drafters would
have gone a long way towards addressing the perception that the Bill is in the first place an “anti-
migrants” statute.

6. Potential for corruption

The Bill recognises that the risk of corruption exists in the current proposals.11 It proposes that an
internal checks and balances system be implemented in order to oversee and eliminate the prospect
of corruption. This is a welcome move. Migrants are particularly vulnerable to the activities of
corrupt officials as they are disempowered as a result of their migrant status and have no form of
recourse.12 Corruption in the area of migration is endemic and any new legislation must tackle this
issue head on and make constructive and effective proposals to rid society of it. Our history of
corruption in this field is well documented.

Our immigration control regime is highly open to corruption. Reports show that some officials sell
documents to immigrants who do not qualify—in one case, they are said to do so in a way which
binds labourers to farmers in a feudal relationship. Allegations have been made that political parties
register immigrants as voters to increase their share of the vote. It has been suggested that there is a
widespread perception that anyone can become a legal immigrant if they pay an official enough
money. Any system, which gives latitude to officials to regulate people’s lives, is open to
corruption. But immigration control is particularly susceptible since it requires officials to
implement a form of control, which is unenforceable.13

In order to address the issue of corruption it is essential to understand the context in which it occurs.
It has been reported that [a] member of the Western Cape Aliens Investigation Unit [has] suggested
that a possible reason for corruption in the police force when dealing with immigrants is that the
police feel demoralised by their attempts to implement an unenforceable policy. Some have
therefore given up, and instead attempt to use it to their own advantage.14

It is incumbent that we work towards an effective, workable piece of legislation that will be enacted
to ensure that the future Immigration Act is not undermined due to its lack of enforceability.

11
The White Paper, Chapter 11 paragraph 2.1.2.
12
Report of the SAHRC op cit. note 25 at p xxviii ff
13
See Friedman op cit. note 8 above; see also Report of the SAHRC op cit. note 25 at p xli ff
14
Maxine Reitzes Undocumented Migration: Dimensions and Dilemmas Paper prepared for the Green Paper Task
Group on International Migration, March 1997 found at
http://www.polity.org.za/govdocs/green_papers/migration/taskt.html

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7. Conclusion
I began this presentation with the comment that this new legislation provides us with an opportunity
to change our approach from a control orientation to managing the movements of people based on
an understanding of migration dynamics. The SAHRC asserts that legislation on International
Migration must have an emphasis on a clear and coherent policy that is applicable, understood and
where management systems are in place. If properly effected, this should ensure pre-entry, on-entry
and after-entry systems such that information on migrating to South Africa is available from South
African missions abroad; immigration officers are trained to be more welcoming and informative
about migration policy. In this way it may not be necessary to “avoid” legal entry if one is assured
of appropriate and clearly understood consideration.

Attention should be paid to improving Department of Home Affairs procedures, speed up

processing and address corruption within the system. Penalties must be directed as much towards
those who employ undocumented migrants as to the illegal immigrants themselves. What all this
implies is that there can be no short-term quick fix solutions to how we go about this. We need a
long term, comprehensive and integrated approach that addresses all elements of the migration
chain. Addressing the management of migration this way will be in keeping with present and future
government policies such as NEPAD and the African Union.

In the National Action Plan 15 (HR’s) South Africa has publicly committed itself to the following
further challenges:
Ø We must sign and ratify the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families.
Ø We need to align legislation with international instruments and treaties.
Ø South Africa is struggling with the problems of a large number of undocumented immigrants.
Ø There is a need to address the rights of undocumented immigrants especially in view of
international human rights provisions, while at the same time protecting the interests and
rights of South African citizens.
Ø There is increasing xenophobia, especially against other Africans.
Ø We need to create greater public awareness among service providers and law enforcement
officers on the rights of aliens and undocumented immigrants/migrants.
Ø The eradication of corruption and fraud.
Ø Trading and small business documentation.16

15
National Action Plan op cit. note 4
16
National Action Plan op cit. note 4 at p 76

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