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A Human Rights Perspective of the Immigration Bill

4. Towards a more flexible migration system

Cross border migration is an integral part of the social, political and economic lives of the people in Southern Africa. It is clear that the current immigration system prevents rather than facilitates the movement of people into the country. As a result, people are forced to make use of clandestine methods that are unlawful and often dangerous. To enforce this restrictive system the state spends unnecessary resources.

For example, the identification and arrest of undocumented migrants forms a significant part of the governments anti-crime operations. Large amounts of resources and time are spent by the police in tracking down undocumented migrants when their time and resources would be more economically utilised in focussing on real crime. The South African Police Services and South African National Defence Force would be much more efficient if they were allowed to focus all their time on cross border crime than to run after illegals in order to fill arrests quotas15.

In elaboration of the discussion above, Lawyers for Human Rights proposes the expansion of existing permits. The current immigration system, as well as the proposed system, does not provide adequate channels for ordinary people in the region to enter and remain legally in South Africa. For example, cross-border traders should be permitted to enter South Africa for a reasonable period on a permit system. In addition to voluntary migrants, there are growing numbers for involuntary migrants coming to South Africa. Although the Refugees Act protects people fleeing persecution and events it does not adequately provide protection for victims of natural disasters, such as floods and famine, as well as other categories of forced migration that fall outside the refugee regime. For example, there are currently a large number of asylum seekers whose applications were determined and rejected year a after they had lodged their applications. The problem was that by the time the Department finally rejected their applications, the political conditions in their country had substantially improved.

The price of visas is generally very high resulting in a large percentage of prospective travellers being unable to afford it. For this reason, Lawyers for Human Rights recommends that visa prices should be reduced or abolished where possible. Lawyers for Human Rights also suggests that issuing of visas should be possible at the border.

The underlying principle of these recommendations is that if migrants are given legal access to the country, it is likely that that they will voluntarily comply with immigrations laws. As a result, it will reduce illegal migration and consequently the enforcement burden on the authorities. It is acknowledged that there is a need for immigration control and the possibility of immigration authorities to arrest, detain and deport. However, the legislation must ensure the protection of human rights as guaranteed under the Bill in the South African constitution. It is this foundation that will create an effective approach to immigration into South Africa and underpin the process leading to regional integration as envisaged in Mbeki’s vision of an African Renaissance.

  1. Ettienne Hennop, SANDF Control of the Northern and Eastern Border Areas of South Africa, ISS Occasional Paper, No 52, August 2001.

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