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A Human Rights Perspective of the Immigration Bill

1. Introduction

In the Southern African region people leave their countries and move to other places for a large variety of reasons. These include the search for economic and business opportunities, tourism and study. In addition there are people who have been forced to leave their countries as a result of war, persecution and natural disasters.

This migration is compounded by the growing economic inequalities prevalent between and within countries. Vulnerable groups such as economic migrants, political refugees, and victims of natural disasters form part of a mixed flow of forced and voluntary migrants who are making use of the same migration routes and strategies.

Although there is great emphasis on the mobility of goods, capital and communication in the new global environment exemplified in the region through processes around the New Partnership for Africa’s Development (NEPAD), this generosity does not extend to the movement of people, especially migrant workers, refugees and asylum seekers. It has become international practice for governments, and South Africa is no exception, to control migration through restrictive immigration policies, such as excessive visa requirements, and deterrent measures such as punitive and arbitrary detention, carrier sanctions, rejection at borders and large repatriation programmes. Ironically, despite increased efforts to prevent illegal or irregular migration, migration by irregular means seems to be consistently increasing.

South Africa’s immigration policy is under revision and is currently debated by the Portfolio Committee for Home Affairs. The drafting of new immigration legislation gives the South African legislators the opportunity to create a new migration system that will not only promote skilled migration and economic growth but also the development of a rights-based approach in its protection of vulnerable and marginalized categories of migrants. However, instead of replacing some of the most offensive aspects of the Aliens Control Act, the proposed Immigration Bill seeks to perpetuate the discriminatory immigration practices of the past. Thus, the Department of Home Affairs intends to continue its burdensome enforcement system of arresting, detaining and deporting migrants.

In order to complement the powerful socio-economic arguments provided by a range of perspectives through this seminar, Lawyers for Human Rights (LHR) believe that a human rights perspective is a necessary foundation for bringing a responsible framework for immigration in South Africa. This is essential for a constructive approach for regional integration in Southern Africa.

In the analysis of the proposed Immigration Bill, Lawyers for Human Rights argue that increased emphasis of illegal migrants will result in costly and inefficient programmes for the arrest, detention and deportation of these immigrants with scant regard for constitutional principles. The policy will also have a fundamentally negative impact on all categories of migrants in South Africa as it will lead to increased human rights abuses and growing xenophobia towards migrants from the region. Instead of recognising longstanding migration patterns, South Africa’s immigration policy will attempt to prevent regularised movement of people from the region. This policy will leave a significant number of migrants with no other means than to enter the country through illegal means1.

  1. NGO Background paper on the Refugee and Migration interface, (2001), Presented to the UNHCR Global Consultations on International Protection, Geneva, 28 – 29 June 2001

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