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A Human Rights Perspective of the Immigration Bill
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2. South Africa’s Immigration Policy
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South Africa’s restrictive immigration policy is not a new phenomenon but is deeply rooted in the political history of the country. The Aliens Control Act, which governs immigration legislation, was passed in the dying years of apartheid when immigration was about control and deportation, not planned and managed entry3. The immigration policy was essentially designed to keep unwanted African migrants out of South Africa and intended to facilitate the immigration of people of European descent. The implementation of this policy was notorious for its cruel treatment of illegal migrants through the use of lethal electric fences and regular mass deportations. The apartheid government’s failure to recognise and protect refugees resulted in large numbers of Mozambican refugees being refolded back to a war torn Mozambique.
Despite various attempts to bring the Aliens Control Act in line with the Bill of Rights, significant parts of the enforcement mechanism in the Act, and the implementation thereof still remain unconstitutional. Various human rights organisations, including Lawyers for Human Rights, have criticised the inadequate procedures for the arrest of illegal migrants and the inhumane treatment of people held in detention4.
Over the last decade, South Africa’s immigration policy has been informed by a common perception that the numbers of non-citizens in the country has escalated dramatically and that a large number of these non-citizens are illegally in the country, and therefore undesirable. The socio-economic burden of this apparent influx of non-citizens has created a political panic; a large percentage of South Africans perceiving foreigners, especially black foreigners, as a direct threat to their future economic well-being and as being directly responsible for the surge in violent crime in South Africa. The perception that South African citizens are competing with millions of illegal immigrants for scarce resources has become the motivation for stricter control6.
This perceived threat of migrants has been challenged by a number of reports, which show that cross-border migration into South Africa appears to be much less chaotic and overwhelming than has been previously thought. In a survey conducted in Lesotho, Mozambique, Zimbabwe and Namibia in 1997, it was found that cross border migration into South Africa is predominately legal, short-term and highly formalised. It was also found that the vast majority of migrants take borders seriously and support immigration policy if it is fair and applied humanely7.
Significantly, the official figures of illegal immigrants used by the Department of Home Affairs have in recent years been heavily contested. The Human Sciences Research Council has pointed out that there are no accurate methods available to establish the number of illegal immigrants in the country. The lack of reliable data makes it impossible to establish a precise figure of the number of illegal migrants since by definition they are not officially recorded.
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- ibid, p.2
- Jonathan Crush, Beyond Control: Immigration and Human Rights in a Democratic South Africa, SAMP, 1998, page 2.
- Emma Algotsson, Towards a Responsible Detention Framework, Botshabelo Sanctuary, November 2001, volume 4, number 2, SAHRC, Getting to the Crossroads of Detention and Repatriation, December 2000, Human Rights Watch, Prohibited Persons: Abuse on Undocumented Migrants, Asylum Seekers and Refugees in South Africa, 1998.
- Jonathan Crush, Beyond Control: Immigration and Human Rights in a Democratic South Africa, SAMP, 1998, page 2.
- National Assembly, “Minister of Home Affairs: Introductory Speech, Budgetary Appropriation,”, August 9, 1994. As cited by Human Rights Watch, Prohibited Persons: Abuse on Undocumented Migrants, Asylum Seekers and Refugees in South Africa, 1998, page 20
- David A Mc Donald et al, The Lives and Times of African Migrants and Immigrants in Post-Apartheid South Africa, SAMP Migration Policy Series No 3, 1999, page 2.
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