Debate on the Immigration Regulations 2014

Beverley Schäfer, MPP

DA Western Cape Spokesperson on Economic Opportunities, Tourism and Agriculture

Madame Speaker,

The report tabled here today regarding the public hearings held on 25 and 26 September 2014, is to determine the extent to which the impact of the new Immigration Regulations (2014) has on the Western Cape economy, and on the lives of people in general.

Speaker, allow me to take you back a little, in order to understand why it is that we are here debating this very issue today.

On 26 May 2014 South Africa’s new Immigration Regulations as well as the Immigration Amendment Act, 2011 [Act No. 13 of 2011] (“the Immigration Amendment Act”) came into effect.

Although, the Act was published in 2011, it could only come into effect after the Immigration Regulations were finalised and adopted. The reason being that the regulations serve as “the engine that enables the Immigration Amendment Act to operate. The new Immigration Regulations were published in the Government Gazette on 14 February 2014 and called for public comments by 28 February 2014, thus leaving only 10 working days for interested parties to study the new regulations and to propose amendments or provide comments. Although the Minister subsequently extended this deadline by another week (7 March 2014) the opinion is that the process was done in an unreasonable haste and that 3 weeks were not sufficient to comment on a policy of this importance and magnitude.

Speaker I cannot stress this enough! 3 weeks was not sufficient time for stakeholders to comment on a policy of this importance and magnitude.

The Regulations were signed into effect on 26 May 2014. What must be noted, is that the Regulations are the responsibility of the Minister, so they do not go through Parliament for consideration. This means that regulations could not be tagged as either section 75 or 76 Bills thus this Parliament could not engage with this piece of legislation.

Understanding this background Speaker,  and adding all the complaints sent through various stakeholders and associations, including those that came through the Western Cape’s Red Tape Reduction Unit, complaints that came to the committee and the large amount of negative press over the sudden implementation, the Committee unanimously resolved on 27 August 2014 to consider the negative impact of these new Immigration Regulations by hosting two days of public hearings and engaging with stakeholders as the impact seemed to suggest that the implications are far reaching.

Speaker,

The constitution states clearly, that the role of legislatures is extended to public administration in that “the public must be encouraged to participate in policymaking”. These public hearings provided an opportunity that many sectors felt, were not afforded to them in the draft phase of implementation of the Regulations.  Committees may investigate any matter of public interest that not only falls within their area of responsibility, but also any matter that has a provincial impact, even its not within the oversight authority of the legislature.

In 2007, a joint study was commissioned by the Presidency and the National Treasury to look at introducing Regulatory Impact Assessments (RIA) into South Africa, which was formally adopted as a set of guidelines for the Presidency in 2012. Speaker, RIAs are used worldwide to assess the impact of legislation on the economy, determine the cost benefit and potential risks that may arise, and more importantly, to ensure that all stakeholders are given the opportunity to give input.

We believe these new visa regulations have failed to fulfil their constitutional mandate of public/stakeholder engagement, and through a parliamentary question received at the NA, it was confirmed that no RIA was ever done. No impact or cost benefit was assessed, and most sectors were never consulted or informed.

Speaker, A total of 43 written and verbal submissions was received representing all the major bodies and associations affected by these regulations. These include, representatives from key sectors such as Tourism, Immigration Services, the Film Industry, the Hospitality Industry, Conferencing, Events and the Meetings Industry, Educational and Training Institutions, the Business Process Outsourcing industry, two international schools based in Cape Town, modelling agencies and the wine industry. Speaker the committee heard emotional stories of children and spouses being torn apart due to the new visa regulations hastily adopted. Just yesterday Speaker the French Consul General mentioned that 20 French learners are still not able to enter SA as a result of the new regulations.

In order to preserve the objective and impartial nature and intent of these hearings, the Committee also invited leading government officials and political leaders. This included the National Minister of Home Affairs, Mr Malusi Gigaba to brief the Committee on the nature of these regulations via a letter on 3rd September 2014. The timeline of events can be found on page 77 of the report tabled as annexure E which led up to the eventual engagement with Minister Gigaba as tabled in annexure F.  In his letter, the Minister has indicated that an engagement with the Standing Committee may be useful in order to “forge a better understanding of the immigration regime, and our own sphere of operations.” The committee is very grateful for the Ministers appearance before the standing committee and giving us his input and the Minister has promised to peruse the report. This gesture, in the spirit of co-operative governance, is greatly welcomed.

From the written and oral submissions speaker received and recorded, specific policy related concerns have been raised under the various sub sections of the Act.

Speaker, the report then provides conclusive findings on the impact of the regulations, the issue around capacity constraints which further exacerbates the problem, the question around human rights abuse and litigation regarding learners being kept out of schools and classified as undesirable. And the recommendations to this House and to the National Assembly.

The report also contains the Committee’s recommendations to the Minister of Home Affairs on the Immigration Regulations.

Speaker the report shows that the Immigration Regulations will have a detrimental effect on the economy of the Western Cape and South Africa in general.

It is evident that significant job losses will occur across all sectors, with the possibility that some sectors would actually come to standstill. As a result, a number of litigation cases have already been launched against the department of home affairs. Red tape stymies investments… it threatens growth. Government cannot simply conjure up jobs, it creates them through easing the business environment not adding more restraint.

In a recent article, Minister Gigaba stated that, “the amendments were in the best interest of South Africa’s security, particularly that of human trafficking which the Minister alludes to on more than one occasion, while “ensuring economic development and prosperity”.

While we recognise human trafficking as a hideous crime that must be acted upon, why is Minister Gigaba using visa regulations, rather than the Prevention and Combating of Trafficking in Persons Bill, signed into law in 2013, which specifically tackles human trafficking crime? Is this not a matter of enforcement that must be looked at? After all, the Act is there to ensure that the enforcement is put into operation.  However when asked about the effect of enforcement via a written question, the Western Cape Directorate for Priority Crime Investigation (DPCI) stated that no arrests had been made since its promulgation. It is important to contextualise this very issue to Speaker. How many incidents of child trafficking or human trafficking have Home Affairs intercepted in the last 12 months when we consider 22 million passenger movements at OR Tambo and 12 million passenger movements at Cape Town International over the last 12 months?

How many such cases have been intercepted at our country’s border crossings where millions annually pass through? Despite requests for more information the Department of Home Affairs remains tight lipped and vague about just how pervasive this issue is in reality.

The Committee recognises the need to implement corrective measures to reverse this situation and balance the security needs with tourism demands. However, in an environment of slow economic growth and declining tourism potential, the introduction of security controls must not impact on tourism growth.

I emphasised the seriousness of the findings of this report and believe that these regulations could tip South Africa into a recession if the impact is not carefully considered.

Issues regarding in-person application of visas, the fact that maths and science teachers have been eliminated from the critical skills list, and reported concerns into the loss of investment and ultimate job creation into the Western Cape economy must be taken seriously.

Minister Gigaba has also publically stated that “…immigrants to South Africa are enjoying high quality service and improved turnaround times at our Visa Facilitation Centres.” Yet no matter what complaint the Committee received or read about in the media, there was always an added comment that capacity constraints are hampering the required turnaround times for visa applications across the world. This further hampers the entire problem and must be addressed. We once again acknowledge Mr Smith and his family in the gallery as a case in point… 300 days and waiting…

Finally speaker,

In terms of Section 104(5) of the Constitution, the public hearings would assist the Committee to make recommendations to the National Assembly – “A provincial legislature may recommend to the National Assembly legislation concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a provincial law.”

And what is very important, recorded right here on this transcript and stated publically, that the Minister has said that should a better solution be on the table, he will gladly look at it.

We believe that this report Speaker, would be taken seriously and that the recommendations should be considered by the Minister.

These regulations could tip South Africa into a recession if its impact is not carefully considered. As such our recommendations must be taken seriously.

In terms of Section 104(5) of the Constitution, the Committee can make recommendations to the National Assembly – “concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a provincial law.”

Speaker, I hereby table this report and ask that this House support the recommendations made to the National Assembly relating to Section 104(5) of the constitution on page 58.

I thank you.