Home Affairs, on the occasion of the second reading debate on the Immigration
Amendment Bill, National Assembly, Cape Town
1 November 2006
Madame Speaker
Chairperson and Members of the Portfolio Committee
Honourable members
As you will recall, the Immigration Amendment Act 19 of 2004 was passed by
this house in September 2004, and was implemented, together with new,
comprehensive regulations, on 1 July 2005, just over a year ago. As I said at
the time, it is our view that the Act provides a workable policy framework for
the management and regulation of migration.
Immigration policy is by its very nature dynamic, and although we realise
that frequent changes in policy and legislation take up considerable resources,
we nevertheless constantly monitor the extent to which our immigration laws
reflect government policy as a whole.
Migration management continues to involve the balancing of different
objectives and interests. One of the areas where this balance is required is in
acquisition of foreign skills to support our economic objectives. While we need
to import certain skills, at the same time our commitment to human rights
demands that foreign workers are not exploited. It is also our policy to
protect the South African workforce, and we must also look for ways in which
skills can be transferred to our own citizens. This is of course not the sole
mandate of the Department of Home Affairs. We are in many cases facilitators of
broader government policies aimed at promoting economic growth and a better
life for all.
Although our policy framework is acceptable, I became aware from discussions
with various stakeholders as well as my own observations that there have been
difficulties in the implementation of the Amendment Act of 2004 and the new
Regulations. The implementation issues have been addressed, for instance the
backlog in processing applications for exemptions from the requirements of
certain regulations has been eradicated, and a project to eliminate the backlog
of permanent residence applications is on track.
Most of the amendments in the Bill I am presenting today deal with technical
issues. The amendments have been included to make it easier for our clients to
understand the requirements for some of the permits.
One substantive amendment is extension of the period for which an intra
company transfer work permit may be issued, from the present two-year period to
four years. An intra-company transfer work permit is issued to allow foreigners
to work in the South African branch, subsidiary or affiliate of the foreign
company that employs them abroad. The permit is characterised by its
requirements being more flexible than the general work permit, which the
employee must apply for if he or she wants to remain in South Africa beyond
four years.
For example, there is no requirement to advertise or search for a South
African citizen or permanent resident that would be able to do the same work.
This permit was designed for multi nationals to be able to function effectively
and the initial rationale for limiting the permit duration to two years was
that this would enable skills transfer.
We have accepted the argument by a number of multi-national companies that
the two-year limit to the permit is a major obstacle to their operations in
South Africa. A common argument is that the duration of a typical senior
manager's contract is three to four years, and for them to comply with the
requirements of the general work permit after two years is disruptive and
unrealistic. This is not to say, however, that skills transfer is not an
important policy objective. A foreigner who has held a work permit for five
years and who has an offer of permanent employment, may apply for permanent
residence. It was for this reason that we did not accede to the request that
the period for the intra-company transfer permit be extended to five years. A
foreigner wishing to settle in South Africa on a more permanent basis should
apply for another appropriate permit.
In order to provide for consistency and clarity, the amendments include
definitions of the terms affiliate, branch and subsidiary. The definition of
depart or departure has been amended to clearly indicate that depart or
departure means exiting the Republic from a port of entry to another country in
compliance with this Act; to provide for ships or rigs which leave a port
intending to return to the port, but not leaving for another country.
In the implementation of the Immigration Amendment Act, 2004 and the new
Regulations, we noted some confusion in relation to the requirements for
holders of visitors' permits who wish to work in South Africa for short
periods, and who are not required to apply for work permits. (These permits are
issued for an initial period of up to three months, which may be extended on
application to six months.) Section 11 has therefore been redrafted to remove
any confusion that may have existed. This section of the Act also provides that
a visitors permit may be issued for a period of up to three years to academics
on sabbatical, researchers, volunteer and charity workers, and those involved
in other prescribed activities who can show that they control available
financial resources.
Sections 15 and 27 of the Principal Act, is amended to substitute the words
financial or capital contribution for capitalisation requirements where they
appear.
Section 20 of the Principal Act is amended to provide the spouse and
dependant children who accompany the holder of a retired person permit with an
appropriate permit, for instance a study permit for a dependant child. Section
26 is amended to provide that a child of a citizen or permanent resident, who
is under the age of 21, must apply for confirmation of a permanent residence
permit within two years of his or her having turned 21.
Section 27 (a) (ii), which provides for permanent residence permits to
foreigners who have certain skills needed by the South Africa economy, is
amended to align the process for determining the list of skills with the
process for quota work permits under section 19(1).
And finally, section 8 has been amended to provide for the withdrawal of a
permanent resident permit if the holder has been convicted of an offence in
terms of the Act, in addition to the existing scheduled offences.
The Immigration Regulations are just over a year old, and as I indicated
above, are reviewed on an ongoing basis as part of the normal monitoring and
evaluation of legislation. This Immigration Amendment Bill has been favourably
received by most stakeholders, and in general there is a broad consensus that
our immigration policy is sufficiently dynamic and flexible to respond to a
wide range of policy objectives.
I must thank all members of the Portfolio Committee on Home Affairs for
their continued support given to the department, the Deputy Minister and I,
during what have been a particularly busy session for them.
It gives me great pleasure to submit for consideration by this House, the
Immigration Amendment Bill, 2006. Enkosi
Issued by: Department of Home Affairs
1 November 2006
Source: Department of Home Affairs (http://www.dha.gov.za)
