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The immigration bill from a human rights perspective

4. Xenophobia and racism

The Bill fails to address the issue of xenophobia and how it interacts with migration policy, in any substance. Section 29(1) of the Bill lists the obligations of the Department of Home Affairs, which include the prevention and deterrence of xenophobia within the Department of Home Affairs, the government, all organs of state and at community level. Moreover, one of the functions of the Department of Home Affairs according to subsection (2) is to educate communities and organs of civil society on the rights of foreigners, illegal foreigners and refugees, and to conduct other activities to prevent xenophobia.

Laudable as these objectives and functions are, however, the Bill pays lip service only to the eradication of xenophobia and racism, as is apparent from certain draconian and xenophobic provisions of the Bill. Paragraph 12 of the SAHRC submission 2000, reads as follows:

‘The Bill contains no substantive provisions to address xenophobia and racism other than the vague statements set out above; The policy background of the Bill, as set out in paragraph 1 above, implicitly enforces the public perception that foreigners, particularly from Africa, “steal jobs” from South Africans, are criminals and only deplete our already exhausted natural and other resources. As long as the government persists with a migration policy to the effect that South Africa’s sovereignty is under threat and that it must isolate itself from its SADC neighbours in order to protect its citizens and resources from exploitation by outsiders, xenophobia will be encouraged rather that eradicated; In its original submission, the SAHRC raised the concern that “community based policing will result in a form of institutionalised racism, reminiscent of apartheid”’.
The Bill dedicates an entire chapter to the duties of various natural and legal persons to police the enforcement of its provisions. A number of legal presumptions are also created that shift the burden of proof from the state to the accused person, in certain cases.

It is unfortunate that the Bill introduces a community based enforcement policy thereby moving emphasis away from border control to community and workplace inspection.8 Although the SAHRC understands the notion that to tighten up the borders has proved to be ineffectual in the United States of America and expensive to implement, the community based policing proposal will result in a form of institutionalised racism, reminiscent of apartheid.

The history of migration policy in South Africa is deeply steeped in racism: To start with, it is necessary to recall that the Aliens Control Act, which makes residence here a gift bestowed by the authorities, was originally a racial law, since it stipulated that those granted permanent residence or citizenship must be “readily assimilable by the white inhabitants”; the authorities also had to satisfy themselves that immigrants did not threaten “the language, culture or religion of any white ethnic group”. Even after this clause was abolished, the application of the law often excluded black immigrants.9

It could, therefore, be argued that many black immigrants have failed to acquire legal status simply because of their race, since their length of residence and role in the job market would have ensured their legality were they white. While the amnesty implemented by the government last year attempted partly to rectify this, its effect has been limited. The fact that most immigrants against whom control is currently exercised are black can—and has—been seen as an indication that aspects of apartheid remain in force.10

For example, in terms of Section 41 all employers shall make good faith efforts to ascertain that he or she employs no illegal foreigners and to ascertain the status of all his or her employees. If it is proven that an illegal foreigner was employed, it is presumed that the employer knew that the person was an illegal foreigner, unless the employer proves differently. Furthermore, if an illegal foreigner is found on any premises where a business is conducted, it shall be presumed that such foreigner was employed by the person who has control over such premises, unless that person proves the contrary. Upon conviction in terms of these provisions, a person may by jailed for 18 months or fined R75 000,00.

Learning institutions are under a similar obligation to ascertain the status of all persons employed by, or associated with the institution. Section 42(2) provides that where an illegal foreigner is found on any premises, it shall be presumed that such foreigner was receiving instruction or training from, or allowed to receive instruction or training by the person who has control over such premises, unless the contrary is proven. A conviction in terms of Section 42(2) also carries the penalty of 18-month incarceration or a fine of R75 000,00.

Places offering overnight accommodation are under an obligation to make a good faith effort to identify the status of its guests and must report to the IS any failure to effect identification (Section 43(2)). In the event that an illegal foreigner is found on such premises it shall be presumed that the foreigner was harboured by the person who has control over such premises, unless the contrary is proven. Penalties are the same as in the above three cases.

These provisions are aimed at galvanising South African citizens and residents into action in order to remove illegal foreigners from the country. When these detailed and rather daunting duties and obligations are weighed against the meagre anti-xenophobia policy statements contained in the Bill, it becomes clear that the Bill sanctions rather than eradicates xenophobia at all levels in South Africa. Moreover, the legal presumptions the Bill creates may be unconstitutional and contrary to the right to remain silent and not to testify during proceedings, as guaranteed by Section 35(3)(h) of the Constitution.

Of even greater concern is the proposed requirement that any person shall identify him or herself on demand. However, Section 44 goes even further to provide that if, when requested to do so by an immigration officer or police officer, the person is not able to satisfy the officer that he or she is entitled to be present in South Africa, such officer may take that person into custody without a warrant and detain him or her until that person’s prima facie status or citizenship has been ascertained.

Section 48 of the Bill goes further to state that any institutions or persons other than organs of state may be required by regulations to endeavour to ascertain the status of any person with whom they enter into commercial transactions and shall report illegal foreigners to the Department of Home Affairs.

In response to these draconian provisions we can only repeat and endorse the SAHRC’s earlier comments on this aspect of the Bill:

“This policy is firmly based on the apartheid policy where people were constantly harassed to assert their right to be in South Africa. Because of the nature of xenophobia in South Africa, as practised by both citizens and authorities, the largest number of people falling foul of this enforcement policy will be black South Africans. In particular, people who are darker skinned will more often be ‘accused’ of being illegal immigrants and therefore subject to institutionalised harassment. To enact legislation which institutionalises this policy will fall foul of the Constitution and be open to Constitutional challenge.”
  1. The White Paper, Chapter 1.
  2. Migrant miners, for example, did not qualify for permanent residence—more generally, a stipulation that self-employed immigrants require cash assets of R50 000 excludes most immigrants from neighbouring countries who lack these funds.
  3. See Friedman op cit. at note 8.

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