briefing to the portfolio committee on home affairs implementation of immigration amendment acts...

Briefing to the Portfolio Committee on Home Affairs

Implementation of Immigration Amendment Acts 2007 and 2011 and Immigration Regulations

Director General: Department of Home Affairs Mr. Mkuseli Apleni

26 August 2014

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CONTENTS

1.Purpose of the presentation

2.Background to the amendments to the Immigration Act, 2002

3.Summary of key changes introduced by legislative amendments

4.Immigration Regulations and their implications

5.Status of the Immigration Amendment Act 2007 and 2011 and the Immigration Regulations 2014

6.Publication of Notices required in the Act / Regulations

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1. PURPOSE

To brief the Portfolio Committee on Home Affairs on:

• the key changes introduced by the legislative amendments

• the contents/provisions of the Immigration Regulations

• the status of the Immigration Amendment Acts, 2007 and 2011 and the Immigration regulations, 2014

To brief the Portfolio Committee on Home Affairs on:

• the key changes introduced by the legislative amendments

• the contents/provisions of the Immigration Regulations

• the status of the Immigration Amendment Acts, 2007 and 2011 and the Immigration regulations, 2014

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2. BACKGROUND TO THE AMENDMENTS TO THE IMMIGRATION

ACT , 2002

South Africans embrace the full integration of South Africa into the family of nations after 1994. The DHA issues about 600, 000 passports annually to citizens who want to travel.

Rising numbers of tourists contribute to our economy and SA is a premium venue for large international events.

In 2013-2014 South Africa welcomed 13.5 million foreign nationals who visited South Africa as visitors.

The National Development Plan (NDP) points to the urgent need to attract international migrants with critical skills.

The DHA is committed to facilitating the entry and exit of legitimate travellers efficiently and humanely.

South Africans embrace the full integration of South Africa into the family of nations after 1994. The DHA issues about 600, 000 passports annually to citizens who want to travel.

Rising numbers of tourists contribute to our economy and SA is a premium venue for large international events.

In 2013-2014 South Africa welcomed 13.5 million foreign nationals who visited South Africa as visitors.

The National Development Plan (NDP) points to the urgent need to attract international migrants with critical skills.

The DHA is committed to facilitating the entry and exit of legitimate travellers efficiently and humanely.

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2. BACKGROUND TO THE AMENDMENTS (Cont. ..)

The DHA also has a Constitutional mandate to defend the country’s sovereignty, security and public safety. All immigration decisions must be based on an assessment of risk to SA.

South Africa faces a range of risks and threats from transnational criminal syndicates who smuggle or traffic people, drugs, protected species and launder money.

Legislation prior to the amendments was based on tick-box compliance and not on effective screening of applicants.

Abuse of the Refugees Act is also rife, with over 90% of applicants only seeking economic opportunities.

The DHA also has a Constitutional mandate to defend the country’s sovereignty, security and public safety. All immigration decisions must be based on an assessment of risk to SA.

South Africa faces a range of risks and threats from transnational criminal syndicates who smuggle or traffic people, drugs, protected species and launder money.

Legislation prior to the amendments was based on tick-box compliance and not on effective screening of applicants.

Abuse of the Refugees Act is also rife, with over 90% of applicants only seeking economic opportunities.

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2. BACKGROUND TO THE AMENDMENTS (Cont. ..)

Often, those who overstay or are bogus asylum seekers, seek to acquire legal status through marriages of convenience or acquiring identity documents fraudulently.

Criminal syndicates work with corrupt officials and other South Africans to facilitate these illegal transactions.

The consequences for South Africa and for foreign migrants are serious. Amongst others, there is the risk to national security, social stability and pressure on social services.

The undermining of immigration laws also prevents orderly migration. This leads to the extortion, abuse and exploitation of migrants who have fraudulent documents or no documents. They can be trafficked or forced into crime.

Often, those who overstay or are bogus asylum seekers, seek to acquire legal status through marriages of convenience or acquiring identity documents fraudulently.

Criminal syndicates work with corrupt officials and other South Africans to facilitate these illegal transactions.

The consequences for South Africa and for foreign migrants are serious. Amongst others, there is the risk to national security, social stability and pressure on social services.

The undermining of immigration laws also prevents orderly migration. This leads to the extortion, abuse and exploitation of migrants who have fraudulent documents or no documents. They can be trafficked or forced into crime.

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Risk-based management of immigration

RSA

Border

Off-shore

Key principles

•Integrated approach

•Single view of traveler's status and transactions

•Professionalised staff

•Enforcement of laws

•Keep risks away from SA

Immigration Management

Requires attention to:

•Role of SA mission abroad

•Bilateral and multilateral relations and agreements

•Immigration issues, trends and strategies

•Ports of entry and use of biometrics for travellers

•Cooperation on refugee matters

OPERATIONAL CENTRE – Access to data from relevant systems. Analyses, assesses risks against knowledge of countries and traveller. Issues data, reports and alerts. Monitors stop-lists. Liaises with other departments and agencies.

Mr Smith applies for visa at SA

mission

Visa and permitting system– Visa issued after pro-active risk assessment and checks done by officials in Mission and SA using DHA system

Mr Smith presents visa at ORT

Mr Smith overstays and Act is applied

Advance Passenger Processing (APP) Data sent to operational centre and he is cleared to board after various checks

Immigration Officer at Port of Entry does first-line checks

Mr Smith departs

Inspectorate enforces law and monitors updated systems to ensure compliance

Mr Smith departs

from airport

Joe is a citizen of RSA

“Joe” is from Horn of Africa or Asia and is seeking opportunities

Pays smuggling syndicate $$$ and gets visa and ticket

Neighbouring Country

Jumps border, gets picked up and taken to safe house

Applies for asylum

Runs small shop, linked to illicit economy, syndicates

Fraudulent marriage

Residence permit – divorces/ bring real wife

Asylum claim rejected

Impacts on

economy, society,

security !!

Security issues

•Could have false identity

•Use weak processes and fraudulent documents of several departments

•Poor and uncoordinated data on the how, why, where and what of “Joe”

•Poor monitoring and enforcement by several departments and spheres of

government

•Gaps exploited in policies, laws and processes of several departments

Bribes paid both sides of border!

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2. Typical cases from case files CASE (1) CASE (2)

• “Max”*, a XXXX immigrant, was granted asylum in 1988

• In 1999 he married a South African woman while working at the embassy of the country he said he fled from.

• He received permanent residence status and was naturalised in 2008.

• Shortly afterwards he divorced his “wife” and married another woman with whom he already had a child.

• “Anelie”* was six when she was smuggled into SA in a car boot.

• She was beaten and abused. Teachers and social workers tried and failed to help her . She ran away and spent her childhood on the streets.

• “Anelie” was raped and impregnated and finally admitted at Welfare institution and was helped.

• She is currently living with her sister.

*SOME DETAILS HAVE BEEN ALTERED TO PROTECT IDENTITY

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CASE (3) CASE (4)• “Mr Nkomo”* entered SA in 2002 on

a study permit, which was valid until 2006

• Obtains B Comm from University of XXXX in 2006

• 2005 pays DHA official to obtain a fraudulent ID application

• “Mr Nkomo”* used his original passport to visit his own country several times.

• He was employed by a SA bank

• His ID document indicates that he took part in the 2009 elections

• “Miriam”*, an Ethiopian, was issued with an asylum seeker (Section 22) permit in 2010. The permit expired and she did not apply for an extension. She over-stayed until 2011.

• DHA records show Miriam’s application was adjudicated and dismissed as unfounded.

• A corrupt DHA official issued her with a Section 24 document stating she was granted refugee status.

• The Refugee Appeal Board confirmed they had never received an appeal application from Miriam.

2. Typical cases from case files (cont...)

Loopholes in the Immigration & Refugee Acts were systematically used by syndicates to sell South African identity and citizenship.

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Some examples of people from across the globe who are making a valuable contribution in South Africa in many areas

Prof Suprakas Sinha Ray, from India

Director Nanotechnology CSIR (crucial new industry)

Professor O. D. Makinde from Nigeria is Senior

Director of the Institute for Advanced Research in Mathematics at Cape

Peninsula Univ. of Tech.

(Leading advocate for maths education)

Kennedy Chinyowa from Zimbabwe Head of Dramatic

Arts & senior lecturer University of the Witwatersrand.

Well-known foreigners in SA football (PSL)

•I. Sarr - Senegal

•G.K. Gibeto - Ethopia

•E. Pelembe - Mozambique

•C. Mbesuma – Zambia

•K. Papic - Serbia

Martin Zimmerman

CEO Mercedes Benz

(Germany)

Ebby Essoka

CEO Standard Bank

(France)

Prof. Tonyfoley

Commissioning Science Leader SKA-

largest science project globally

(UK)

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3. SUMMARY OF KEY CHANGES INTRODUCED BY LEGISLATIVE

AMENDMENTS

The Act and its Regulations have been amended to refer to all categories of temporary residence permits as visas. This is aimed at making a clear distinction between short stay visas and permanent residence permits. The only permits to remain as permits are permanent residence permits, which are longer stay in the Republic

All new applications for visas will be made at our Missions in person and this will allow the implementation of the risk-based approach to immigration management, including the verification of applicants prior to arrival in the Republic

The Act and its Regulations have been amended to refer to all categories of temporary residence permits as visas. This is aimed at making a clear distinction between short stay visas and permanent residence permits. The only permits to remain as permits are permanent residence permits, which are longer stay in the Republic

All new applications for visas will be made at our Missions in person and this will allow the implementation of the risk-based approach to immigration management, including the verification of applicants prior to arrival in the Republic

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A change of status or visa terms and conditions from within the Republic will not be permitted for persons on visitor’s or medical treatment visas. Persons who want to effect such changes will need to submit application from outside the Republic

Study visas will be issued for the duration of the studies rather than having to renew such visas on a yearly basis

Business visas are to be issued for businesses that enhance the national interest. In this regard, relevant Departments (DTI and DoL) will first assess the feasibility of the prospective business venture, including compliance with labour laws and the benefit it would have for the South African economy, before a business visa is issued.

A change of status or visa terms and conditions from within the Republic will not be permitted for persons on visitor’s or medical treatment visas. Persons who want to effect such changes will need to submit application from outside the Republic

Study visas will be issued for the duration of the studies rather than having to renew such visas on a yearly basis

Business visas are to be issued for businesses that enhance the national interest. In this regard, relevant Departments (DTI and DoL) will first assess the feasibility of the prospective business venture, including compliance with labour laws and the benefit it would have for the South African economy, before a business visa is issued.


AMENDMENTS (Cont…)

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A list of undesirable businesses (not encouraged for investment and issuing of visas) was published in consultation with the Minister of Trade and Industry, however it does not mean that such businesses cannot operate.

An investment amount was also revised in consultation with the Minister of Trade and Industry – from R2.5m to R5m

A list of undesirable businesses (not encouraged for investment and issuing of visas) was published in consultation with the Minister of Trade and Industry, however it does not mean that such businesses cannot operate.

An investment amount was also revised in consultation with the Minister of Trade and Industry – from R2.5m to R5m



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After consultation with the relevant Departments and in view of the now enacted Employment Services Act (Bill introduced by Minister of Labour at that time), a decision was taken to repeal the quota and exceptional skills works permits and to introduce a category of critical skills work visas to assist in the attraction of critical skills to the Republic.

A critical skills list was prepared in consultation with business and Government Departments and published on 3 June 2014.

An intra-company transfer work visa will be issued for a period of four years instead of the current two years.

Instead of paying repatriation deposit upon application for a visa, employers are now required to ensure and make guarantees that their foreign employees will comply with the terms and conditions of their visas and leave the Republic upon termination of contract or employment or expiry of the visa. Costs of deportation may be demanded based on guarantees.

After consultation with the relevant Departments and in view of the now enacted Employment Services Act (Bill introduced by Minister of Labour at that time), a decision was taken to repeal the quota and exceptional skills works permits and to introduce a category of critical skills work visas to assist in the attraction of critical skills to the Republic.

A critical skills list was prepared in consultation with business and Government Departments and published on 3 June 2014.

An intra-company transfer work visa will be issued for a period of four years instead of the current two years.

Instead of paying repatriation deposit upon application for a visa, employers are now required to ensure and make guarantees that their foreign employees will comply with the terms and conditions of their visas and leave the Republic upon termination of contract or employment or expiry of the visa. Costs of deportation may be demanded based on guarantees.



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The convictions for human smuggling and trafficking have now been included alongside genocide, terrorism, murder, torture, drug-related charges, money laundering and kidnapping. Previously persons who had outstanding warrants or convictions for offences relating to human smuggling and trafficking could not be properly dealt with and would qualify visas.

An amendment has been introduced to provide that any person who overstays the duration of a visa or permit for a particular number of days at a time is now listed as an undesirable person who is prevented from returning to the Republic for a prescribed period of time. Such persons no longer have the option of paying a fine for the transgression

The convictions for human smuggling and trafficking have now been included alongside genocide, terrorism, murder, torture, drug-related charges, money laundering and kidnapping. Previously persons who had outstanding warrants or convictions for offences relating to human smuggling and trafficking could not be properly dealt with and would qualify visas.

An amendment has been introduced to provide that any person who overstays the duration of a visa or permit for a particular number of days at a time is now listed as an undesirable person who is prevented from returning to the Republic for a prescribed period of time. Such persons no longer have the option of paying a fine for the transgression



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4. IMMIGRATION REGULATIONS AND IMPLICATIONS Regulation Benefit

The Regulations require foreigners to be in possession of a machine readable passport. However, for countries that are still issuing non-machine readable passports, their citizens will be allowed entry until 24 November 2015. This is in terms of ICAO standards

• Enhances security of the State and all persons residing in the Republic

For applicants applying for a visa because they are in a permanent homosexual or heterosexual relationship, the Act requires a notarial agreement signed by both parties attesting that the permanent homosexual or heterosexual relationship has existed for at least two years before the date of application for a relevant visa or permanent residence permit and that the relationship still exists to the exclusion of any other person

• This is to dissuade abuse as individuals would produce an affidavit which has no legal and binding consequences and therefore easily deposed to for mere compliance to obtain a visa

For a person travelling with a child, the Regulations require that the person must be in possession of an unabridged birth certificate, and a consent affidavit from the parent or parents of the child authorising the person to travel with the child.

• This is in line with South Africa’s international obligation to curb child trafficking and also in line with the provisions of the Childrens’ Act, 2005 (Act No. 38 of 2005). This will further assist in curbing abduction and kidnapping of children, sometimes even by one of the parents

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Regulation Benefits

The Act and the Regulations require the Minister to designate places of entry and exit and to gazette such designation

• The publication of the designations in the Gazette will enable all persons to know which areas have been declared as International Ports of Entry.

Transit visa shall―(a) in the case of air transit, be issued for a period not exceeding 24 hours; and(b) in the case of land transit, be issued for a period not exceeding 48 hours.

• Transit visas assist in identifying persons travelling through the Republic – security measure - and in the event such persons enter RSA irregularly from the country they transited to, the Department would be in a position to detect their irregular movements.

Visitor’s visa: a return air ticket or proof of reservation thereof will be required and proof of sufficient financial means in the form of a three months bank statement, cash available to the applicant, traveller cheque, etc.

• This serves as a measure to ensure that a person would return to his or her country, and would not burden the State to deport him or her. Repatriation deposits are no longer required

Study visa will be issued for the duration of the period of study and a student at a University or FET will be allowed to conduct part-time work for a period not exceeding 20 hours per week

• This will be to the benefit of students and learners alike as they will not be required to renew their visas annually

The Act / Regulations re-emphasize that a treaty visa will be issued to a foreigner who is participating in a programme where an organ of state is party to.

• No changes have been made to this Regulation – remained the same.

4. IMMIGRATION REGULATIONS AND IMPLICATIONS (cont.)

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Regulation Benefits

No business visa will be issued to a business that has been declared undesirable.

At least 60% of the total staff compliment employed in the operations of the business must be South African citizens or permanent residence

• To dissuade the mushrooming of businesses that are not in the national interest and do not provide growth to the domestic economy.

• This is in line with Government’s key priorities – job creation – previously it was only 5 persons that the holder of a business visa was required to employ

The regulations re-emphasizes the issuance of a crew visa for officers or members of the crew of a public conveyance

• No changes were made to this regulation – still as it was before

For a relative’s visa to be issued to a foreigner, such foreigner must submit proof of kinship in the second step in the form of an unabridged birth certificate and, where necessary, paternity test results

• This is to curb the abuse of the immigration laws of the Republic as well as ascertaining the intention of the applicant, as well as the relationship to the person who is being said to be relative.

Work visa; general, critical skills and intra-company transfer work visa

Department of Labour will issue a certificate confirming compliance with labour standards

• This is to ensure that Employers recruit locally and only source the skill if not available in the Republic. The Employer must also prove compliance with the labour standards such as registration with UIF, COIDA Fund and have suitable working conditions, as a measure to protect employees from working in unsuitable conditions


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Regulation Benefits

Quota and exceptional skills permits have been repealed and instead a critical skills work visa has been introduced.

• A critical skills work visa may be issued to a person without having employment but a for period of specific period (not maximum period), with a condition to find employment within 12 months.

Intra-company transfer work visa will be issued for a period not exceeding four years and is not renewable. Previously, an intra-company transfer work visa was issued for a period not exceeding two years.

• This will benefit the employees who are transferred by the parent company to subsidiaries in the Republic.

Corporate visa: at least 60% of the total staff compliment must be South African citizens or permanent residents

A corporate worker certificate will not be issued beyond the validity period of the corporate visa

The Departments of Labour and Trade and Industry will also be involved

• This is to ensure that Employers recruit locally and only source the skill if not available in the Republic. The Employer must also prove compliance with the labour standards such as registration with UIF, COIDA Fund and have suitable working conditions, as a measure to protect employees from working in unsuitable conditions

An asylum transit visa will be issued at a port of entry and will be valid for a period of five days to allow the person to approach the nearest Refugees reception centre


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Regulation Benefits

Permanent residence permits will also be issued to persons who possesses critical skills, though not all holders, upon consideration

• Not all listed skills may warrants issuance of permanent resident.

Prohibited persons do not qualify for a port of entry visa, visa or admission into the Republic

• This will assist in dealing with those who have criminal offences not to gain entry into the Republic.

Overstayers will no longer pay a fine but will be declared undesirable for a prescribed period

• This serves as a deterrent as a fine has proved not be a deterrent enough.

The Act and the Regulations require conveyancers are required to comply with the Advanced Passenger Processing and to provide passenger name records

• This assist the Republic in knowing in advance who is intending to travel to the Republic and offers an opportunity to issue a boarding advice. Furthermore, making it compulsory will enable the Dept to can charge a reasonable fee for payment of the system. All security checks are done by the system within seconds of receiving the data from the Airlines.


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5. STATUS: IMMIGRATION AMENDMENT ACTS, 2007 AND 2011

AND THE IMMIGRATION REGULATIONS, 2014

The Immigration Amendment Acts, 2007 and 2011 (“the Amendment Act”) came into operation on 26 May 2014 (Proclamation R32, 2014 and R33, 2014).

The Immigration Regulations, 2014 came into operation on 26 May 2014. These Regulations repealed (entirely) the Immigration Regulations made in 2005.

The Regulations on Fees published in 2005 are still applicable as they were not repealed.

The Immigration Amendment Acts, 2007 and 2011 (“the Amendment Act”) came into operation on 26 May 2014 (Proclamation R32, 2014 and R33, 2014).

The Immigration Regulations, 2014 came into operation on 26 May 2014. These Regulations repealed (entirely) the Immigration Regulations made in 2005.

The Regulations on Fees published in 2005 are still applicable as they were not repealed.

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6. PUBLICATION OF NOTICES REQUIRED IN THE ACT /

REGULATIONS

The Notices relating to the following were published on 3 June 2014:

Minimum amounts - pension or irrevocable annuity or retirement account - retired person visa or permanent residence permit

Financial guarantees - corporate applicant - defray deportation and other related costs - corporate visa

Proof of sufficient financial means

Minimum net worth - permanent residence permit

Administrative fines

The Notices relating to the following were published on 3 June 2014:

Minimum amounts - pension or irrevocable annuity or retirement account - retired person visa or permanent residence permit

Financial guarantees - corporate applicant - defray deportation and other related costs - corporate visa

Proof of sufficient financial means

Minimum net worth - permanent residence permit

Administrative fines

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REGULATIONS (cont.)

Financial assurance - relative’s visa

Costs of detention and maintenance

Amount to be forfeited by person in charge or owner of conveyance

Critical skills list

Financial assurance - relative’s visa

Costs of detention and maintenance

Amount to be forfeited by person in charge or owner of conveyance

Critical skills list

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REGULATIONS (cont.)

The Notices relating to the following were published on 15 July 2014:

Financial or capital contribution for businesses in respect of business visas and permanent residence permits

List of undesirable business undertakings in relation to an application for business visa

Businesses qualifying for reduction or waiver of capitalisation requirements as determined to be in the national interest in relation to a business visa

List of undesirable business undertakings in relation to an application for corporate visa

The Notices relating to the following were published on 15 July 2014:

Financial or capital contribution for businesses in respect of business visas and permanent residence permits

List of undesirable business undertakings in relation to an application for business visa

Businesses qualifying for reduction or waiver of capitalisation requirements as determined to be in the national interest in relation to a business visa

List of undesirable business undertakings in relation to an application for corporate visa

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briefing to the portfolio committee on home affairs implementation of immigration amendment acts...

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