COSATU's view of amended immigration regulations
The Congress of South African Trade Unions has some serious concerns about the Amended Immigration Regulations which took effect from 22 May 2014.
These are intended to amend the Immigration Act by tightening existing regulations and closing loopholes. But they also reflect an increased sensitivity to security concerns within government, in line with international post-9/11 security trends, e.g. visa applications that must be done in person with biometric data recorded.
There are also several fundamental omissions and flaws that make it difficult for COSATU to support the regulations in their current form.
Key areas of concern include the partial privatisation of visa application services, silence on unskilled migrant labour, unduly harsh sanctions, the involvement of social services in law enforcement, the impact upon tourism and the capacitation of the Department of Home Affairs.
Substantive Concerns
Partial privatisation of visa application services
Visa applications completed within South Africa and those submitted in some other countries, are now to be submitted to a private company, VFS Global, to whom applicants must pay a hefty fee of R1350. The company merely ensures that the applications contain the relevant documentation and then forwards them to the Department of Home Affairs for processing.
This partial privatisation of a government service by Home Affairs goes against COSATU's long-standing opposition to outsourcing and our call for a capacitated state.
Unskilled and migrant labour
The new regulations are completely silent on unskilled and migrant labour, ignoring the history of centuries of migrant labour in the region and the current situation where millions of unskilled migrant workers work in South Africa.
The regulations provide for work visas for scarce skills. To get such visas both the employers and the Department of Labour have to certify that they cannot find persons with the relevant skills within South Africa, and the South African Qualifications Authority (SAQA) has to certify the applicants' qualifications.
The overwhelming majority of the millions of Basotho, Swazi, Mozambican, Zimbabwean, Malawian and other workers in South Africa are unskilled, working without work visas and plying their trades as farm workers, gardeners, domestic workers, mine workers, traders, security guards etc.
It will be highly unlikely that a Swazi plantation worker or Malawian gardener will be able to have his skills certified by SAQA or convince the Department of Labour that their skills are scarce enough in South Africa. Thus the new regulations will effectively ensure that the majority of unskilled migrant workers will not be able to legally work within South Africa.
If these millions of unskilled migrant workers cannot work in South Africa legally, the consequences could be similar to what has occurred in other African countries such as Nigeria and Ghana, where illegal unskilled migrant labour is tolerated until a domestic economic or political crisis erupts and the government then, under pressure to deliver or distract attention from the crisis, expels illegal migrant workers.
The other consequence of this silence is to simply to ensure that unskilled migrant labour remains illegal and thus leaves the workers vulnerable to exploitation and abuse and deprived of their labour rights.
Whatever the intentions behind this silence, it is in directly contrary to COSATU's and the Alliance's commitment to internationalism, regional solidarity and commitment to protect vulnerable workers.
The 250 000 Zimbabweans whose special status dispensation is due to expire later this year have received mixed messages. Whilst the Director-General for Home Affairs, Mkhuseli Apleni, has assured them that they their matter will be dealt with soon and that they do not need to worry, the Minister for Home Affairs, comrade Malusi Gigaba, has sounded less sympathetic, asking for time to apply his mind.
He was quoted as asking what crisis is there in Zimbabwe from which its citizens are seeking refuge in South Africa, and that the Zimbabweans are in reality migrant workers. He ignores the fact that there are still deep seated political and economic problems there.
Unduly harsh sanctions
The new regulations provide for persons who exceed their visa days by less than 30 days to be declared undesirable and banned from South Africa for 1 year, for those who exceed their visa twice in 2 years to be banned for 2 years and for those who exceed their visas by more than 30 days to be banned for 5 years. An option of a fine is no longer applicable.
These new sanctions have already had severe consequences for many otherwise law abiding people and their families. Some children have been declared undesirable due to their visas having expired and not being allowed to re-enter South Africa where they live with their families.
This has been extremely traumatic for these children who are innocent parties whose visa applications and statuses are the responsibilities of their parents and Home Affairs. This has also forced the families to either be temporarily separated or to not be allowed back into South Africa.
Many of the affected families have indicated that they had timeously submitted their visa renewal applications to Home Affairs, often several times, but that the Department lost them or simply took too long to process them. Many of these families, and immigration lawyers, have indicated their intention to oppose the new regulations in court and to contest their constitutionality.
The involvement of social services in law enforcement
The regulations require not only the police, but also such social services providers as hospitals and educational institutions, to ascertain the legal status of foreigners who request their services.
The possible serious consequence of requiring hospitals, schools and police to ascertain the legal status of foreigners may be that they will simply not seek protection from police when threatened, not send their children to school to be educated or not go to hospitals when sick, with possibly deadly consequences.
California and other American states in have had similar debates. Right wing xenophobic Republicans want to expel illegal immigrants from Latin America, though ironically much of South Western US was under Mexico until 150 years ago when it was conquered militarily.
More progressive Democrats have argued that with millions of undocumented migrant labour in the US it is better and more humane not to involve social services in law enforcement and rather to allow everyone to access police, health, education and driving license services freely without fear of deportation. Surely South Africa this would be more humane and in keeping with the spirit of the Freedom Charter's commitment to African solidarity and access to public services for all?
The impact on tourism
The Minister for Tourism, Comrade Derek Hanekom, has publicly raised concerns about the new regulations' potentially negative impact upon tourism, which is now the largest contributor to South Africa's economy, having overtaken the mining several years ago.
Security concerns may have been the reason behind the changes to the regulations which now require persons applying for visas to do so in person at a South African Embassy, to submit x-rays confirming that they do not have tuberculosis and police clearance certificates for all countries that a person has lived in for a year or longer since they were 18 years old.
Such new cumbersome and costly requirements may simply discourage tourists from visiting South Africa and inadvertently encourage them to visit and spend their money in countries with less cumbersome entry requirements.
Making it more difficult and not easier for tourists to visit South Africa may very well further undermine government's efforts to create more jobs in an already tough economic situation.
Additional Concerns
Medical coverage for students
The new regulations require foreign students to have medical cover whilst studying in South Africa. While this may be a standard international requirement, it could make it prohibitively expensive for disadvantaged students from African or other developing countries to study in South Africa.
Applications to amend visa statuses
The regulations now require applicants who seek to change their visa status to do so in their normal country of residence and no longer in South Africa, except in medical or other emergencies. This may be prohibitively expensive and either discourage persons from legally amending their visa status or in effect dissuade them from remaining within South Africa where their skills may be needed.
Transit asylum applications
Whilst refugee applications are dealt with under different legislation, there are possible negative consequences of the regulations for asylum seekers. Immigration officials need to be certain that asylum seekers are not fugitives from justice but this may be difficult, as a fugitive from justice may in reality be fleeing an unjust regime.
Asylum seekers also have to submit their applications within 5 days, but they can no longer do so at Home Affairs' Regional Offices, only at three offices in South Africa, which have experienced serious incapacitation, queues and other crises.
Department of home affairs' capacitation
Many of the problems arising from the implementation of the new regulations have been due to the Department of Home Affairs' capacitation problems. Many of the pending court cases have cited applications repeatedly being lost, taking excessively long time and officials requesting incorrect documentation or not being properly trained to handle complex applications.
Whilst much progress has been made in the Department's capacity to provide passports, ID and birth certificate services for South Africans, its capacity to provide visa, refugee and other services for foreigners, and Africans in particular, is frequently found badly wanting.
COSATU will be engaging with the ANC, SACP and he Minister for Home Affairs to seek to convince government to review the above critically problematic areas.
Statement issued by Patrick Craven, COSATU national spokesperson, July 16 2014
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