Last week, Zahida Ebrahim presented to Parliament on the proposed changes to the Immigration Amendment Bill 32 of 2010 and has subsequently issued the following statement:
The Immigration Amendment Bill 32 of 2010 is premature in that it should have followed a complete review of South African immigration policy. The proposed Bill does not comprehensively address the challenges currently experienced in terms of the prevailing legislation and policy. Furthermore, it is difficult to make sense of the impact of the amendments to the Act, without the benefit of the extent of the proposed amendments to the Regulations, which will no doubt in due course be published. The process embarked upon is thus somewhat flawed and imperfect. It would have been much better had the proposed new Regulations been published with these amendments, particularly since the proposed changes will, in many instances, be directly in conflict with the Regulations currently in place.
One of the stated purposes of the Bill is to correct technical defects of the Act which was caused by its hurried passage through Parliament, and as a result of difficulties which became apparent in the implementation of the Act and regulations over the past number of years. Yet, very little time has again been afforded to comment on the proposed amendments.
The Immigration Act and Regulations must, of necessity, be practically capable of successful implementation and enforcement. In terms of the proposed amendments, applications for a change in status or changes to the conditions of a permit can no longer be brought in South Africa without the approval of the Minister of Home Affairs, and approval will only be granted in exceptional circumstances as prescribed by the Minister. On a practical level, it is unlikely that the Minister will be able to deal with the large volume of applications that is likely to be received. The provision is also unnecessarily onerous where applicants already hold legitimate status in South Africa, for example, where a study permit holder applies for a work permit, or a foreigner applies for a change of conditions from one work permit category to another, or changes employment in South Africa.
If the intention of the repeal of the provision which allow for submission of applications by Immigration Practitioners and Attorneys is for applicants to visit offices of the Department of Home Affairs or a foreign embassy to apply in person for their status, this is likely to cause severe problems, as it is impractical to expect executive level employees of multinational companies to queue at the Department’s offices for hours on end to submit applications, particularly since this cannot be done by appointment. If, on the other hand, the intention is to allow anyone to be able to submit an application on the applicants behalf, this will result in an unregulated industry with unqualified and inexperienced practitioners further delaying the already protracted immigration process. A further effect of the submission of applications by unqualified practitioners is a likely increase in fraud and, bearing in mind that each agent often submits numerous applications per day, it is also likely to exacerbate the poor conditions and overcrowding experienced at Home Affairs offices nationally.
It is our view that insufficient consideration has been given to the economic impact and the impact on industry of some of the proposed changes. One of our major concerns is that business permits will only be issued in respect of businesses prescribed to be in the national interest and Corporate permits will only be issued to companies which conduct business in limited sectors.
This is likely to stifle economic growth, particularly in burgeoning industries, especially if one considers that the Department has a poor track record for adequately considering all industries and sectors. The deletion of the mechanisms to reduce or waive prescribed capital requirements is also likely to impact negatively, as no provision is made for low capital, labour-intensive businesses, or establishment of businesses in sectors which government wishes to promote, where capital requirements are not met.
The Amendment Bill also seeks to combine the existing Quota Work Permit and Exceptional Skills work permit categories under the new Critical Skills work permit category, which proposes to effectively do away with the Exceptional skills category. The challenge is that a prescribed list of critical skills may not adequately provide for applications by talented individuals in various fields, including Arts, Entertainment and Sport.
If the purpose of these amendments are to curb abuse of these permit categories, the remedy is to ensure that the applications are properly motivated and scrutinised by the Department. The answer is not to do away with provisions which provide useful practical remedies and which further economic development and serve the operational requirements of industry.