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The immigration bill from a human rights perspective
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3. The SAHRC’s concerns with the bill
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Management in the context of South Africa’s obligation to the region
An informed approach to any legislation on immigration must be based on a clear understanding of current immigration trends in a given country’s geographical region. In South Africa, this means that we must understand why people are attracted to come to this country. Much has been written about the ‘push-pull’ factors3 , in short, factors that determine why people want to leave their country of origin and why they choose a particular destination. In our case there is a whole history to this phenomenon. This goes back to the discovery of minerals in South Africa in the last century, when, many people from neighbouring countries came to work in the mining industry. The mining sector continues to employ many people from our neighbouring countries. The economic situation coupled with high rates of unemployment in our neighbouring states has resulted in a great dependence on this form of employment, in the entire sub-region.
The Bill deals with migration by making provision for a number of temporary residence permits to be issued to appropriate foreigners. What stands out is the fact that the Bill does not take our historical reality into account. Rather, priority is on providing permits to investors, entrepreneurs and people who promote trade and are seen as bringing new knowledge, skills and expertise. None of the permits specifically deal with the position of migrant workers and traders. The permits provided for are as follows:
Crewman permit; Medical permit (holder may not work); Relatives Permit; Work permit; Retired person’s permit; Exceptional skill or qualifications permit; Intra-company transfer permit; Corporate permit; Exchange permit (only applicable to persons under 25 years of age); Asylum; and Cross-border and transit passes.
The solution offered by the Bill is to accommodate farm and mining migrant workers under the corporate permit (White Paper, Chapter 7, paragraph 7 and Section 16 of the Bill). Upon application, domestic and foreign businesses intending to relocate human resources to South Africa could receive permission to import a certain number of people. Such business would be handling the visas as well as the work permits directly on the basis of a delegation from the Department of Home Affairs. In order to receive the delegation a corporation will have to meet certain requirements laid down by Section 16(2) of the Bill.
This sort of approach fails to take due regard of both our historical reality and regional obligations. It encourages both illegal migration and negates the reality of the existence of many migrant workers already active in the country. Research has shown that ‘Costing’ immigration implies that immigrants only consume resources: they do not create them. But anyone who engages in economic activity also creates wealth—and it is generally accepted that immigrants do engage in this activity. A Centre for Policy Studies report found, for example, that Mozambican immigrants in the Ivory Park informal settlement at Midrand are sought-after builders, and there is no shortage of evidence which indicates that many immigrants are engaged in trade and service industries. For some, the fact that immigrants are creating wealth is part of the problem because they are seen to be “taking” jobs or trading opportunities needed by South Africans—often at lower rates of pay or by evading trading regulations.4
It appears then that the temporary residence chapter of the Bill merely restates the premise of the White Paper that South Africa is not in a position to address and alter conditions in the rest of the continent and therefore we are not in a position to develop a migration policy to deal with migrant workers. An obvious counter-approach, which the SAHRC maintains, is that we should adopt a management-oriented approach towards migration. Such an approach will not only be in line with South Africa’s historical regional obligations, specifically towards Southern African Development Community (“SADC”) countries, but will also be more in line with the governments stated policies on the New Partnership on African Development (“ NEPAD”) and the African Union.
Indeed, the Green paper stated that “International economic prospects for countries are increasingly tied to their ability to function within regional groupings of states. Many of these emerging regional blocs are also developing new migration regimes with preferential treatment and mobility rights for citizens of member states. The European Union represents the most advanced model of such arrangements. The 12-member SADC is at a far less advanced stage of integration and needs to develop its own policies of economic co-operation, integration and population movement.
South Africa is a closely integrated member of a functioning region. The neighbouring states are linked to South Africa by long-standing economic ties. One of the most important linkages of mutual benefit historically has been the existence of labour flows to and from South Africa. Immigration policy should be sensitised to this history of the region and South Africa's long-standing economic ties to the SADC states.5
A more effective approach would be to adopt a humane management-orientated approach to migration policy, which recognises both our moral and historical ties to the region. This could be achieved by ensuring that our development policies take into account our regional obligations, for example, the Maputo Corridor has benefits for both South Africa and Mozambique.6 A further solution would be the implementation of bilateral agreements between South Africa and its neighbours, whereby migrant workers would be subject to the same labour standards, benefits and wage agreements as South African citizens. In this way, the notion of ‘cheap, non-unionised’ labour for certain sectors falls away as a benefit, and this incentive to prefer migrants over citizens is removed. The migrants would benefit from these agreements as they would be entitled to the protection of both the South African labour laws and wage agreements in the industry.7
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- Clarence Tshitereke Revisiting the push-pull theory: Comment on the White Paper on International Migration Southern African Migration Project; The White Paper at Chapter 6 paragraph 4.2.1; The Green Paper at section 2.2.
- Steven Friedman Migration Policy, Human Rights and the Constitution undated paper submitted to the Task Team drafting the Green Paper found at http://www.polity.org.za/govdocs/green_papers/migration/friedman.html
- The Green Paper paragraphs 1.4.1. and 1.4.2.
The Green Paper paragraph 1.4.5.
Dr Jonathan Crush in Temporary Work and Migration Policy in South Africa in a Briefing paper for the Green Paper Task Team on International Migration, February 1997 stated that “Undocumented temporary workers in the agricultural sector, construction, transportation and services, have either entered the country clandestinely or overstayed their temporary residence permits or secured false documentation. Employers in those sectors using temporary workers have traditionally been able to exert sufficient power over the central or local state to avert large-scale prosecution for their use of this labour. This is a calculated risk on the part of employers who either do not enquire too closely about the origins of their workers or do not particularly care as long as the labour is available and cheap. South African employers of temporary labour undoubtedly want to continue to employ workers from outside the country. Ironically, it is their very illegality that makes them attractive as employees although employers tend to claim that South Africans will not accept the work at the wage rates they can afford. It is this situation that South African policy makers are increasingly concerned about. The concern is not so much with the working and living conditions of temporary workers per se, but with the impact that undocumented workers have on unemployment and wage levels among South Africans. There is a widespread perception, amongst the general public as well as a broad spectrum of policy makers, that “illegal” temporary workers deprive South Africans of jobs and depress wage levels, as well as cause a whole host of other social problems. In fact, there is little or no concrete evidence to substantiate these claims.” Found at http://www.polity.org.za/govdocs/green_papers/migration/crush2.html
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