The centre is registered with the South African Department of Social Development as a non-profit organisation (021-

079 NPO) and as a Public Benefit Organisation with the South African Revenue Services (930047854) and governed

by a Trust (IT020157/2014) Auditors: Solace Consulting (Greg Cronje) greg@solaceconsulting.co.za

To Director General Department of Home Affairs,

Private bag x114, Pretoria, 001

For attention: Mr Sihle Mthiyane

Director: Policy Development

Re: Commentary on the Green Paper on International Migration

Contact: Sergio Carciotto – Scalabrini Institute for Human Mobility in Africa

director@sihma.org.za

1. INTRODUCTION

1.1 The Scalabrini Institute for Human Mobility in Africa (SIHMA) is a research institute

based in Cape Town and forms part of a broader network of established research

centres, located in Manila, Buenos Aires, Sao Paolo, Paris, Basel, Rome and New York.

These centres are part of the network of the Scalabrinian Centres for Migration Studies

and are supported by the Missionaries of St Charles – Scalabrinians, a Congregation of

the Catholic Church devoted to the care of migrants, refugees and seafarers.

1.2 SIHMA’s work is founded on the Scalabrini ethos and inspired by universal values such

as respect for human dignity and diversity. Our Vision is an Africa where the human

rights of people on the move are ensured and their dignity is promoted; our Mission is to

conduct and disseminate research that contributes to the understanding of human

mobility and informs policies that ensure the rights and dignity of migrants, asylum

seekers and refugees in Africa.

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1.3 We welcome the call by the Department of Home Affairs for public comment on the

Green Paper on International Migration which was published in the Government Gazette

on 24 June 2016.

1.4 For the purpose of this commentary we will focus on three of the seven policy areas

included in the Green Paper, namely: (1) Management of Residency and

Naturalization; (2) Management of International Migrants with Critical Skills and

Capital and (3) Management of International Migration in the African Context.

2. MANAGEMENT OF RESIDENCY AND NATURALIZATION

2.1 Currently applications for permanent residency in South Africa are considered in terms

of Section 26 and Section 27 of the Immigration Act 2002 (Act No 13 of 2002) and read

with Regulation 33 of the Immigration Regulations. Depending upon the different

provisions of the Immigration Act 2002, permanent residency is subjected to three main

requirements: (1) the length of stay in the country (5 years); (2) the positive

contribution individuals can make to the economy through their skills, qualifications or

financial investments and lastly (3) spousal and parental relationships with a South

African citizen or permanent residency permit holder.

2.2 According to the Green Paper “the current approach to the granting of permanent

residency or naturalisation is mechanical and compliance-based rather than to achieve

strategic goals or to build the nation” (page 39). Hence, the proposed policy objective is

to “granting residency and citizenship status to foreign nationals based on strategic and

security considerations and the national priorities of South Africa.”

2.3 We agree with the Green Paper that permanent residency and naturalization should be

granted strategically to highly skilled immigrants and foreign investors. However, we

would like to highlight that Section 27 of the 2002 Immigration Act already contains

provisions to fast-track permanent residency for immigrants who have exceptional skills

and qualifications, as well as for those who intend to establish a business in South Africa.

2.4 We concur with the proposal to grant permanent residency to foreign students who

graduate in discipline linked to the critical skills list as this can certainly boost national

economy and help reducing skill shortages in critical areas. Such initiatives aimed at

recruiting and retaining students “represents an increasingly popular strategy to attract

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skilled labour […] and constitute an efficient means to recruit highly skilled migrants at

relatively low social and labour market integration costs”.1

2.5 The Green Paper further states that, “there should be no automatic progression or right

to permanent residency or citizenship in law or practice; and the granting of permanent

residency and citizenship should be delinked” (page 41). The proposed policy seeks to

separate permanent and temporary immigrants according to their skills and financial

capitals rather than to their length of stay in the country.

2.6 We are extremely concerned about the intention of delinking permanent residency from

the length of stay in the country by not allowing long-term temporary residents,

including recognized refugees, to apply for permanent residency. We believe this

proposal is morally unjust and contravenes the ethical principle that “the longer people

stay in a society, the stronger they are morally entitled to the same civil, economic, and

social rights as citizens, whether they acquire formal citizenship status or not.”2

In this regard, it is worth noticing that, in 2003, the European Union issued a directive

recommending that “Member States shall grant long-term resident status to third-

country nationals who have resided legally and continuously within its territory for five

years immediately prior to the submission of the relevant application.”3

Recommendations:

2.7 We believe that government should maintain the status quo and continue granting

permanent residency to individuals who have been legally residing in South Africa for at

least five consecutive years. This is, in fact, morally acceptable and compatible with

democratic principles of justice. Moreover, every immigrant who is lawfully present, is

employed or self-employed and have no criminal record, is an economic contributor to

the local economy and do not pose a security threat to the country.

2.8 The assumption that many immigrants, who have received permanent residency or

citizenship through marriage or due to their length of stay in the country, are not

contributing to the national economy is not supported by any evidence-based research.

2.9 Temporary workers, both skilled and unskilled, who have spent at least five years in the

country participating in the domestic market and civil society, develop a moral claim to

membership through their participation in the receiving society’s market and civil

1 See Parsons et al., Conceptualizing International High-Skilled Migration, Working Paper 104, (Oxford University, 2014), pp.14. Available at: http://bit.ly/2cGf4mV 2 See Joseph H. Carens, “The Ethics of Immigration” (Oxford University Press, 2013), pp. 89. 3 See art. 4, Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents.

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society. We believe that for such immigrants the claim to membership is an inalienable

right and should not be restricted. We propose that the length of stay in the country

should be the guiding moral principle and the cornerstone for a full socioeconomic

integration and promotion of social cohesion. In the same vein, the European Union has

declared that “the main criterion for acquiring the status of long-term resident should be

the duration of residency in the territory of a Member State.”4

2.10 Furthermore, we suggest that the policies of naturalization and residency should

differentiate between young immigrants and adult immigrants. The South African

Citizenship Act, as amended in 2010, already provides for those foreign children who

were born in South Africa and whose parents were not South Africans. Section (4)3 of

the Act clearly states that: “a child born in the Republic of parents who are not South

African citizens or who have not been admitted into the Republic for permanent residence,

qualifies to apply for South African citizenship upon becoming a mojor if he or she has lived

in the Republic from the date of his birth to the date of becoming a major”.5 This is, for

instance, the case in France where young immigrants are given the opportunity to apply

for permanent residency when they become adults.

2.11 For those young immigrants who arrived in South Africa after their birth, the acquisition

of permanent residency should be “unconditional and automatic” if they have attended

school for at minimum of eight years. All young immigrants who have learnt a South

African language, as well as national civic and social norms during their compulsory

school age, should be offered the possibility, when they turn eighteen years old, to apply

for permanent residency in South Africa.

2.12 In line with the Green Paper which states that “induction or orientation programmes

should be one compulsory step in the naturalisation process or the awarding of

citizenship” (page 56), we recommend that every immigrant who intend to apply for

permanent residency undergo a test of civic integration. Such test represents a useful

tool to assess immigrants’ language skills as well as their knowledge of basic social and

civic norms. Young immigrants who have spent at least 6-8 years in a South African

school should be exempted from undertaking the test.

2.13 Local municipalities should be given the task to administer the civic integration test as

they have the responsibility to foster local integration. “Municipalities can organise

4 See Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country

nationals who are long-term residents. 5 See Section (4)3 of the 2010 South African Citizenship Amendment Act.

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training in the host country’s language for immigrants – for preschool children and for

adult learners. One measure that would support mutual integration is to facilitate the

South Africa population in learning the language(s) of immigrant communities. Another

is to support immigrants’ cultural activities, which can help immigrants to feel at home

in a new country.”6

2.14 It is responsibility of immigrants to integrate themselves in the local communities, but

receiving states need to ensure that they offer immigrants concrete opportunities to

learn the national language and as well as to familiarize with the country’s basic social

and civic norms. As stated by the European Commission “the integration of migrants is ‘a

two-way process involving adaptation on the part of both the immigrant and of the host

society’; they have also argued for: fighting discrimination and xenophobia; integration

into the labour market; granting civic and political rights to longer-term immigrant

residents; a civic citizenship; measures directed at women and families from immigrant

backgrounds; a welcoming society (the responsibility of national political leaders);

specific integration programmes at national, regional and local level; long-term,

comprehensive integration programmes developed through partnerships involving

national, regional and local authorities and civil society.”7

2.15 From what was stated above, it emerged clearly that, one of the main pillars of the

European integration policy is the granting of civic and political rights to longer-term

immigrant residents. Integration can. In fact, be fostered by granting long-term

immigrant residents permanent residency and naturalization. With regard to adult

immigrants, in fact, “states are obliged to respect the claims of belonging that arise from

living in a political community on an ongoing basis.”8

2.16 The Green Paper further argues that “refugees should not be allowed to apply for

permanent residency on the grounds of the number of years spent in the country” (page

41). This is based on the assumption that ‘refugehood’ is a temporary status and that

after a certain period of time refugees should return to their home countries. However,

there are circumstances when return is impossible or not desirable and, even when

conditions are conducive for refugees to repatriate, problems might arise due to the

challenges of reintegration in the country of origin9. In this regard, there is no empirical

6 See Integration of third-country migrants, Background Paper, European Foundation for the

Improvement of Living and Working Conditions, (2007), available at: http://bit.ly/2dyGBFB 7 Ibid. 8 See Joseph H. Carens, (n.2), pp.103-109. 9 See Sergio Carciotto, “Angolan refugees in South Africa: alternatives to permanent repatriation”, African Human Mobility Review, 2, no. 1 (2016), pp.367. Available at: http://bit.ly/2cQGfsV

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evidence to support the idea that reintegration into the sending countries would be

more successful than into the host community.

2.17 We support one of the recommendations reported in the 1997 Green Paper on

International Migration that “refugees should benefit from a firm guarantee to make

permanent residency available at the end of the temporary protection period”10.

Furthermore, article 34 of the 1951 Genève Convention relating to the status of refugees,

states that “the Contracting States shall as far as possible facilitate the assimilation and

naturalization of refugees. They shall in particular make every effort to expedite

naturalization proceedings and to reduce as far as possible the charges and costs of such

proceedings.”11

3. MANAGEMENT OF INTERNATIONAL MIGRANTS WITH CRITICAL SKILLS AND

CAPITAL

3.1 The Green Paper emphasizes the importance of attracting and retaining high-valued

migrants and the necessity of fast-tracking permanent residency and naturalization for

migrants with skills and capital.

3.2 In line with the Department’s proposal, we recommend the introduction of a point-

based system for the recruitment of highly skilled migrants. The purpose of this

mechanism is to help identifying those migrants who can offer an economic benefit to

South Africa. A point-based system has the advantage to be transparent and allows

potential immigrants to self-assess their visa applications. In order to qualify for a highly

skilled point-based system, applicants should be employed in one of the government’s

critical skilled occupation list. Points can be awarded according to certain criteria such

as age, language skills, level of educational qualifications and work experience.

3.3 To effectively respond to immediate and future economic needs, a point-based system

for highly skilled immigrants should cater for both independent and sponsored

applicants. For the former, to receive a job offer from a South African registered

employer should not be a requirement. Highly skilled immigrants should also be allowed

to change employer without undergoing a further application under the point-based

system.

3.4 We recommend government to maintain an employer-led option for medium- and

highly-skilled migrants whose jobs are not listed on the critical skilled occupation list

but have received a job offer from a South African-registered employer. In this case,

10 See Green Paper on International Migration, Department of Home Affairs (1997), pp.36. 11 See, 1951 Genève Convention Relating to the Status of Refugees, available at: http://bit.ly/1QA1oGc

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applicants can be assessed using a point-based system and would have to undergo a

labour market test to verify whether or not a suitable candidate can be found amongst

the South African labour force. Applicants enrolled through this programme should be

able to qualify for permanent residency after five years of stay in the country.

4. MANAGEMENT OF INTERNATIONAL MIGRATION IN THE AFRICAN CONTEXT

4.1 The Green Paper does make an important shift by emphasizing the need to introduce a

permitting regime “to regulate and manage migrants with lower levels of skills and

capital, in particular those from the SADC region” (page 59). The Green Paper further

states that SADC member states including South Africa, are committed to overcoming

the legacy of colonialism by achieving a vision of an industrialized SADC with developed

infrastructure, internal markets and free movements of people, goods and capital (page

60).

4.2 African Member States have also committed to the Agenda 2063 which envisages an

integrated African continent and establishes 12 fast-track programmes, one of which is

based on the promotion of the free movement of people. Decision, EX.CL/Dec. 908

(XXVIII) adopted at the 2016 January Summit on the Executive Council, further affirms

commitment to African Integration through free movement of people, goods and

services. In 2015, the AU Assembly also committed to develop a Protocol on Free

Movement by January 2018. This Protocol has several objectives, including the

establishment of a visa free regime and the rights to stay, establishment and residency

for all African citizens.

4.3 We encourage the South African government to revise the current permitting regime

which does not provide adequate options for migrants with lower levels of skills and

capital. It is necessary, in fact, to offer a safe and legal alternative to economic migrants

from the SADC. The proposal of introducing a permitting regime, based on quota, to

regulate labour mobility from neighbouring SADC countries sounds reasonable and

advisable.

4.4 Workers from the SADC should be entitled to the same employment rights and

protection of local workers and their access to the labour market should be consistent

with the UN and ILO international conventions and agreements. Low skilled and

unskilled workers from the SADC region should also be eligible for permanent residency

after a stay of five consecutive years in South Africa.

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4.5 The management of unskilled and low-skilled migrants presents a number of

socioeconomic and political challenges. There is, in fact, a growing perception that such

immigrants are ‘stealing jobs’ and competing unfairly for public services.

4.6 Furthermore, the relevant literature reveals that scholars hold diverging views on the

effects of unskilled migration on the host economies. However, research leads to the

following conclusions:12

1. The initial net effect of unskilled labour migration on wages of South African workers

is small. The adverse effects of unskilled migration on wages is to be found among prior

cohorts of unskilled immigrants. However, in the long run, this effect becomes less

profound as investment picks up, the economy adjusts, and immigrants and their

offspring build human and social capital.

2. The fiscal impact of unskilled immigration is small and may be positive or negative

depending on the characteristics of migrants; younger migrants who are employed tend

to be net fiscal contributors.

3. Immigrants and their descendants need not form a permanent underclass. In

countries with a long tradition of immigration, such as the United States and Canada, the

scholastic achievement of the children of migrants and their labour market outcomes

are not significantly different than that of the children of natives after controlling for

socioeconomic characteristics.

4.7 Despite the fact that unskilled migrants might compete with unskilled South Africans,

the negative effects on wages and employment opportunities have proven to be

negligible. Furthermore, unskilled migration can bring benefits such as lowering the cost

of services and goods offered by migrants and increasing productivity in labour-

intensive segments of the economy.

4.8 As such, it is advisable to put in place adequate measures to compensate potential

adverse distributional consequences of labour migration that could affect certain

segments of the South African population. This could be done either by increasing taxes

for those companies who employ foreign workers, or by imposing an access charge for

migrants who want to access the labour market. We believe that taxing employers will

not produce the expected positive benefits as it will discourage them from hiring foreign

workers. A better option would be to introduce an access charge for highly skilled

12 See Uri Dadush, The Effect on Unskilled Migration on the Host Economy, KNOMAD Working Paper 1 (2014), pp. 2-3. Available at: http://bit.ly/2cjTYEL

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migrants, which can then be used to finance skill enhancement programmes targeting

the local population.

4.9 We therefore invite the South African government to conduct a thorough assessment at

national, regional and local level, of both the economic and fiscal impacts of unskilled

and low-skilled migration in South Africa. As far as we are aware, there is no

comprehensive study on this issue and if it was results have not been released. The lack

of rigorous and scientific evidence can, in fact, severely hamper the process of policy

formulation. Moreover, “labour market research can provide valuable information on

job and wage competition between South African and other workers.”13

4.10 We strongly support the implementation of special dispensations for SADC migrants

who are already living in South Africa and are employed or self-employed. Such

initiatives provide the possibility for economic migrants to regularise their stay. We

encourage government to issue all those migrants regularized through special

dispensation programmes either a SADC special work visa, a SADC traders’ visa or a

SADC SME visa. Holders of this visa should qualify to progress to permanent residency

after five consecutive years spent in the country.

5. CAPACITY FOR MANAGING INTERNATIONAL MIGRATION

5.1 It is imperative that the Department of Home Affairs seeks to restore its integrity as both

the immigration and the refugee systems are still perceived by the public at large as

highly dysfunctional. In order to meet the declared objective of enhancing the system for

adjudication and processing of asylum seekers, the Department of Home Affairs should

provide refugees status determination officers (RSDOs) with sufficient training to

produce fair and lawful decisions. In 2014, only 12% of all asylum applications were

approved, while in 2015 the percentage of approved applications dropped to 4%14. As

evidence-based research highlights “a review of status determination decisions reveals

an asylum system that is failing to fulfil its constitutive function under the Refugees Act,

as well as its obligations under the UN’s 1951 Convention.”15

5.2 In the same vein, to meet its strategic objective of enabling documents issued to

foreigners efficiently and securely, the Department of Home Affairs should allocate

enough resources to adjudicate visa applications in a shorter period of time but also to

produce decisions in compliance with the current legislation. Moreover, the discrepancy 13 See Department of Home Affairs (n 4), pp.41. 14 See Department of Home Affairs, 2015 Asylum Statistics: Analysis and Trends for the Period January to December (2015), pp.36. 15 See Roni Amit, All Roads Lead to Rejection: Persistent Bias and Incapacity in South Africa Refugee Status Determination Amit (ACMS, 2012) pp.99, available at: http://bit.ly/2cQ7JyN

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between policies and their actual implementation is also widened by a series of

administrative inefficiencies and a lack of capacity within the Department of Home

Affairs. The gap between declared policy objectives and their implementation “is

particularly significant when a large degree of discretion and assessment is involved in

policy implementation. This leaves considerable scope for subjective interpretation and

political or public pressure, for instance, in refugee status determination and work

permit applications.”16

Sergio Carciotto

Director of SIHMA

Cape Town, 27 September 2016

16 See, Mathias Czaika and Hein de Haas, The Effectiveness of Immigration Policies, Population and Development Review 39, no. 3 (2013), pp. 496.

Sergio Carciotto