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Final white paper on citizenship, immigration and refugee protection was published on Wednesday, focusing on much tighter border entry. From Moneyweb.

Home Affairs plans to reintroduce immigration courts and wants municipalities to conduct audits of spaza shops to establish the owners’ immigration status. Image: Supplied

The Department of Home Affairs (DHA) plans a radical overhaul of SA’s visa regime and a much tougher stance on illegal immigration and refugees.

The final version of the white paper on citizenship, immigration and refugee protection was published on Wednesday after considering public comments from civil society, the United Nations and others.

Home Affairs Minister Aaron Motsoaledi announced a sweeping reform of the country’s visa regime at a media presentation, also on Wednesday.

The number and types of visas are to be reduced, which means some – such as relatives’ visas, corporate visas and intra-company visas – will be abolished.

In will come limited-duration permanent residence visas linked to minimum investment, e-visas for tourists, and remote work visas.

Read/listenNew regulations open doors for remote workers to SA

“The maximum period to issue visas must be shortened,” says the white paper.

“The new bodies to issue visas will have to strictly observe the new requirement. Transitional mechanisms will be built in in the new legislation to fast-track the resolution of current backlogs.”

Illegal foreigners

Motsoaledi says the DHA deports 15 000 to 20 000 illegal foreigners every year, which is just a fraction of those in the country. No one has any idea how many illegal foreigners are in the country, though estimates range from five to 13 million.

New legislation will be introduced to strengthen the powers of immigration officers and the inspectorate and make continuing training compulsory. The majority of members of the inspectorate must have legal qualifications and policing experience.

Motsoaledi explained that the recently introduced Border Management Authority Act will need to be reviewed to align with the Immigration Act, allowing for inter-departmental cooperation in sealing SA’s borders against illegal migration. This means bodies such as the South African Police Service (SAPS), the South African Revenue Service (Sars), the departments of Trade and Industry, Health, Home Affairs, and others will have to be involved.

ReadOverhaul of border control and immigration laws on its way [Nov 2023]

“The recent publication of the National Labour Migration Policy introducing quotas for employment of foreign nationals will go a long way in defusing simmering tensions between South African citizens and foreign nationals,” says the white paper.

The DHA’s inspectorate division will be tasked with developing a strategy to track down illegal foreigners.

Immigration courts make a comeback

One of the tools of the new policy will be immigration courts – which were removed under amendments to the Immigration Act in 2004 – staffed by retired or serving judges and senior advocates.

Reintroducing these courts will allow for faster immigration appeal hearings and stop the common practice of illegal foreigners launching high court applications on an urgent basis to halt impending deportations.

Illegal foreigners frequently use this to disappear into the country and are never heard from again.

Currently, the director-general of Home Affairs and the minister hear appeals and reviews of visa applications.

The existing system for issuing visas is untenable and massively backlogged.  

Different pieces of legislation

South Africa has different pieces of legislation dealing with citizenship, immigration and refugee protection. These are the Citizenship Act, Immigration Act and Refugees Act.

Motsoaledi says the Citizenship Act is a relic of the colonial era and replicates the 1949 Citizenship Act, which favoured white, male immigration and where citizenship was reserved for those of “sound mind” – a discreet way of discriminating against other races.

None of these pieces of legislation are in harmony. Piecemeal amendments were made over the years in the absence of a coherent policy framework.

ReadSouth Africa needs to manage migrants better

A new advisory board is proposed – comprising representatives of different government departments and guided by more frequent updates to the critical skills list for determining immigration policy and priorities.

An anti-corruption unit is to be established in the DHA, with the assistance of the SAPS, to flag fraudulent activities. 

One proposal is to create an Immigration and Refugee Board to smooth the review and appeals process and reduce the mountain of cases currently faced by Home Affairs.

Refugees

Several refugee protection agreements govern SA’s approach to refugees, including the 1951 United Nations Refugees Convention and the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, which was drafted in the spirit of Pan-Africanism as a way to deal with migration and refugees in Africa.

The 1967 Protocol Relating to the Status of Refugees provided further protection for those seeking sanctuary from wars, political unrest and other causes of refugee migration.

The OAU Convention prohibits refusal of entry, expulsion or extradition of asylum seekers and refugees, though it makes provision for certain exclusions.

SA passed the Refugees Act in 1998 to align with the UN and OAU conventions, and the law prohibits refusal of entry, expulsion or extradition of asylum seekers and refugees. SA agreed to these international conventions without making any reservations, as it was entitled to do. 

The white paper proposes that SA review and possibly withdraw from the 1951 Convention and the 1967 Protocol with a view to accede to them “with reservations”, like many other countries.

SA’s refugee protection and immigration legislation must provide for reservations and exceptions in light of its limited resources to grant them the socio-economic rights required under international conventions.

Citizenship

The Citizenship Act, first conceived in 1949, is to be reviewed to streamline citizenship by naturalisation in line with legislation in more developed countries such as the US, Britain and Canada.

“The Citizenship Act and Births and Deaths Registration Act must be repealed in their entirety and be included in the single legislation dealing with citizenship, immigration and refugee protection,” said Motsoaledi.

“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 of all naturalised citizens must be maintained and tabled annually in parliament by the minister of Home Affairs.

Agricultural labour and spaza shops

Agri SA has argued for exemptions for the agricultural sector due to its reliance on unskilled foreign labour.

Motsoaledi says Home Affairs is willing to enter into public-private partnerships with organisations such as Agri SA to agree on quotas as proposed under the Labour Migration Policy.

Read/listen: Home Affairs clarifies why work visas were withdrawn

Spaza shops owned by foreign nationals are also under the spotlight. The DHA proposes that all municipalities across the country conduct an audit of these shops to establish the owners’ immigration status. 

“Furthermore, municipalities will introduce by-laws to regulate the location and other requirements such as, health and safety. Traditional leaders will play an important role in respect of informal shops located in communal land,” said Motsoaledi.

The audit of spazas will ensure these businesses are registered for tax and other regulatory requirements, and it will not be permissible for owners and their employees to sleep and wash on these premises.