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The immigration bill from a human rights perspective

1. Introduction

The passing of new immigration legislation has been long awaited in South Africa. The Aliens Control Act (“ACA”) is the last major piece of Apartheid era legislation that must still be redrafted. The drafting of new immigration laws provides us with an opportunity to erase discriminatory legislation from our statute books as well as the exciting opportunity of bringing our law in line with modern international trends and developments within the human rights sector that articulates the rights of immigrants more clearly now than in the past. This new legislation provides South Africa (“SA”) with the opportunity to create a new and modern piece of legislation that is in keeping with our own constitutional democracy. Furthermore, it presents an opportunity to tackle the failings of the current system and address the challenges that will face us in the coming years. Lastly, it is important to stress that there is no better time than now to address the imbalances caused by racially based immigration laws and policies of the ACA.

The South African Human Rights Commission (“SAHRC”) prepared submissions during 2000 on both the White Paper on International Migration as well as the draft Bill. We identified six major areas of concern.

  1. The need to manage rather than control migration against the background of SA’s international and regional obligations


  2. The fight against xenophobia and racism


  3. The application of the bill of rights to non-citizens


  4. The proposed appeal procedures


  5. Places of detention


  6. The risk of corruption

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