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South Africa’s new draft policy on international migration

South Africa’s new draft policy on international migration

06 Jul 2016

JB Cronjé, tralac Researcher, comments on the newly-released Green Paper on International Migration in South Africa and the policy interventions it proposes

The South African Department of Home Affairs recently published a Green Paper on International Migration (Government Gazette 40088, 24 June 2016) for public comments. It argues that the current international migration policy should be replaced with a new managed migration approach that is in line with the African development agenda. The publication of such a discussion document should be viewed as the start of a law-making process followed by the publication of a more refined discussion document, a White Paper, which represents a broad statement of government policy on a particular issue. Overhaul of South Africa’s immigration policy is long overdue. The current policy on international migration is set out in the 1999 White Paper on International Migration and is supported by the Refugee Act of 1998 (under review) and Immigration Act of 2002 (as amended).

A number of developments in recent years have demanded policy reform. South Africa has become a major tourist destination, transit hub for air travellers in Africa, popular venue for international events, and a major player in areas such as filmmaking and astronomy. It is also experiencing large shortages of skilled workers in most economic sectors. In 2014, more than 15 million arrivals of foreign visitors were recorded by the Department of Home Affairs of which 90 percent involved Southern African Development Community (SADC) nationals. South Africa is also host to the largest number of refugees and asylum-seekers on the continent and the fifth largest in the world. And many African countries are liberalising their immigration regimes in line with the African Union’s Agenda 2063 vision; urging South Africa to follow suit.

The Green Paper argues it is neither desirable nor possible to stop or reduce international migration. Its point of reference is that international migration is, in general, beneficial if it is well-managed. It argues for a new immigration policy that is underpinned by the Constitution and National Development Plan; contributes to national interests such as national security; orientated towards Africa; contributes to nation building and social cohesion by giving the country a competitive edge in a knowledge-based world economy; enables South Africans living abroad to contribute to national development priorities as valuable sources of skills, capital and connections; actively strengthens international efforts in building bilateral and multilateral partnerships to promote and implement good practices and principles of shared and collective responsibility and cooperation.

The Green Paper highlights seven policy areas for intervention in the current policy. The main shortcomings in the identified policy areas include:

  • lack of a risk-based approach to international migration that is considered best practice globally:

    • The implementation of a new immigration policy will start with the introduction of a more efficient and effective traveller identification management system. A risk-based approach to migration ensures that undesirable persons are detected at the source country and prevented from travelling to South Africa. This can, in fact, facilitate movement of legitimate travellers by granting bona fide travellers long-term multiple entry visas and self-service immigration clearance through automated gates at points of entry. In a media statement issued at the beginning of 2016 the Department announced the abolishment of transit visa requirements for all travellers transiting through South African International Airports. In future, legitimate travel and trade in the SADC region will be facilitated by integrated border controls to be implemented by a new border management authority that will be responsible for all official points of entry and the borderline. This will also entail the rationalisation of official points of entry, the establishment of one-stop border posts, preclearance of travellers at the perimeter of a border post to enforce port of entry security, and the regulation of informal border crossings. All border officials will share a common identity whilst carrying out their respective mandates such as health, security or customs.

  • bias towards mechanical compliance to formal residency and naturalisation requirements rather than managing international migration strategically

    • In future, the granting of residency and naturalisation will be based on strategic goals to enrich society and build the nation. Unlike the current situation which effectively creates automatic qualification for permanent residence and subsequently citizenship provided certain conditions are met. For example, immigrants can qualify for permanent residence depending on a certain period of stay in the country, irrespective of the type of visa they hold. Even refugees can apply for permanent residence on this basis. The Green Paper proposes that there should not be automatic progression or right to permanent residence or citizenship. The granting of citizenship should be delinked from permanent residence and should be considered as being exceptional.

  • need for better management of international migrants with skills and capital

    • Skilled workers are in short supply. The current policy for granting visas to skilled or well-resourced people is ineffective and inflexible. It is proposed that the attraction of migrants with skills, investment and business interests should be linked to a points-based system that is transparent, less reliant on published critical skills lists and more flexible to changing situations and needs. A new long-term work visa could be introduced to those with special skills, investment or business interests. These long-term visas will be granted to a family as a unit, enabling all members to study and work. In an effort to attract and retain international students, it proposes to grant permanent residence or long-term work visas to international graduates from local universities.

  • lack of holistic policy approach in particular a lack of engagement with South African emigration communities abroad

    • A large number of South Africans with valuable skills have emigrated. A strategy should be developed to foster ties with diaspora communities in order to reap the full benefits of South Africans working and studying abroad. This could include the establishment of an institution to actively promote emigration to meet varied national goals such as labour and study exchange programmes; tap into the resources of the diaspora in terms of remittances, tourism, skills transfer and investment; and, embracing diaspora communities by offering various services such as multinational citizenship, consular services and reintegration schemes.

  • filling policy gaps regarding asylum seekers and refugees

    • The Green Paper proposes that detention centres should be erected at borders. The current system permits asylum seekers to study and work pending the processing of their applications. This encourages corruption, manipulation and abuse of the system. In future, only refugees and not asylum seekers will be allowed to integrate into society. Asylum will be refused to those who have travelled through one or more safe countries. Bilateral agreements with neighbouring countries are envisaged in this regard.

  • inadequate processes to integrate migrants into society

    • Migration policies shape the future composition of a population. For example, a policy can give preference to professionals or investors or set quotas to limit the intake of foreigners. However, the country is yet to adopt a coherent policy to assist holders of long-term work visas, permanent residents, naturalised citizens and refugees to integrate into society. This could include the granting of family-based visas, induction programmes and social security to qualifying refugees.

  • inadequate consideration of historical and geopolitical migration patterns in Africa

    • According to the Green Paper, globalisation is causing increased interdependence between trade, migration and investment. In particular, migration seems to be influenced by regional economic integration processes in the African context. However, these migratory flows are also marked by inadequate institutional capacity in many African countries.

At the African Union Assembly in June 2015, Members adopted Agenda 2063 as both vision and action plan for the integration of Africa. The Green Paper acknowledges at least two resolutions adopted by the Assembly set clear parameters for South Africa’s immigration policy, namely, the establishment of a Continental Free Trade Area (CFTA) and a continent-wide visa-free regime, including the issuing of visas on arrival at ports of entry for African citizens. As a result, visa-free entry should be the norm provided bilateral return agreements are concluded. Recently, the Department started issuing 10-year multiple entry visas to frequent travellers from other African countries. Where visas are still required, entry will be as easy as possible for bona fide travellers.

In SADC, although lagging behind other regional economic communities on the continent, the Protocol on the Facilitation of Movement of Persons has been adopted to facilitate the free movement of people, encompassing the right to visa-free entry, residence (temporary and permanent), and establishment (income generating activities). The main challenge in this regard is to develop critical enabling conditions, such as compatible immigration policies, laws, systems and accurate population registers. In light of slow progress regionally, South Africa has unilaterally or bilaterally adopted visa-free entry for nationals from 11 SADC countries. It also offers special permits to irregular migrants from Zimbabwe and Lesotho.

In addition, the SADC Protocol on Training and Development provides for the elimination of immigration formalities to facilitate the freer movement of students and academic staff and the SADC Protocol on Tourism calls for the abolishment of visas for SADC nationals and a tourism UNIVISA for visitors from outside the region. Concerns regarding security and income sharing have seemingly derailed this process. Unfortunately the Green Paper does not make any mention of the SADC Protocol on Trade in Services and the temporary movement of persons supplying a service.

In the absence of free labour mobility in SADC and in order to better manage economic migration, an incremental implementation of 3 types of visas is proposed for Lesotho, Namibia, Swaziland, Botswana, Zimbabwe, Mozambique and Malawi. Issuing of the following visas will be tied to a programme to regularise undocumented SADC migrants currently residing in the country:

  • SADC special work visa: This quota-based regime will not allow holders to obtain permanent residence.

  • SADC traders’ visa: A long-term multiple entry visa for frequent cross-border traders.

  • SADC Small and Medium Enterprise visa: Self-employed persons who pay taxes and follow South African business regulations will be welcomed.

The Green Paper seeks to build national consensus around a new international migration policy. It proposes policy interventions in seven areas of which three policy areas are not currently addressed in the 1999 White Paper on International Migration. They include managing international migration in an African context; managing ties with South African emigrants; and, managing the integration of international migrants into society. These policy areas are also the least developed. Therefore, public inputs on these issues are required to provide a solid foundation for the drafting of new legislation that is vertically and horizontally coherent but also in sync with economic integration efforts taking place at the regional and continental levels. The development of an African oriented immigration policy offers an opportunity for South Africa to offer new commitments and extract concessions from SADC and CFTA Members on the movement of people. Equally, the imminent CFTA negotiations can also be used to help shape and accelerate the development of South Africa’s new immigration regime.

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Sources:

DHA, 2016. Statement by Home Affairs Director-General Mkulesi Apleni following an update session with tourism stakeholders on the implementation of cabinet concessions on immigration regulations, 5 February 2016, Acardia, Pretoria.

DHA, 2016. Green Paper on International Migration in South Africa, Government Gazette Number 40088, 24 June 2016. Available at: http://www.tralac.org/images/Resources/South Africa/Green Paper on International Migration in South Africa 24-07-16.pdf

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