Long awaited Immigration Bill nears completion

Refugees and economic migrants may not get the breaks they hoped for, as South Africa's controversial Immigration Bill nears completion.

Jacob van Garderen of Lawyers for Human Rights (LHR) warned that gains made in the existing Refugee Act could be reduced if the Refugee Appeals Board is abolished and replaced by the envisaged immigration courts proposed by in the draft Bill.

The original draft wanted immigration courts to be separate from the rest of the justice system. But amid strong opposition this was amended so that magistrate's courts could be designated by the Minister of Justice to deal with immigration matters.

"It took a long time for the appeal board to build the capacity and knowledge it needs to deal with people who have had their asylum rejected. It is a specialist court and it would take a long time to build up and replace this capacity within another court based on the magistrate's system," said van Garderen.

"Political refugees are very vulnerable and need special protection," he said. "South Africa's treatment of undocumented immigrants has already led to complaints by human rights organisations."

Xenophobia in South Africa was at its most extreme last year when foreign residents of an informal settlement in Zandspruit outside Johannesburg were attacked and their houses were burned down. Even people either married to or in relationships with foreigners were targeted.

At the Lindela detention centre west of Johannesburg in March, one man died and several others were hospitalised when they were beaten up after escaping from the centre.

The proposed Bill also does not recognise old and established migration patterns such as cross-border traders and economic migrants, he said.

"It is extremely expensive and impossible for cross-border traders to get the right documents so they enter the country on tourist permits and end up being classified as illegal. The state is spending a lot of money tracking them down and returning them when it should be focusing on crime prevention strategies targeting cross-border crime syndicates.

"These people become separated from their families and deported but before the train has even returned to Johannesburg they are back," Van Garderen said. "Instead of trying to control migration, they should manage it - make it possible for people to enter legally, record them and spend more resources on fighting cross border crime and less on tracking down innocent people."

However, Van Garderen said the LHR was encouraged that Home Affairs Minister Mangosuthu Buthelezi included minimum standards for the detention of undocumented immigrants. It hoped Buthelezi would follow through with the establishment of an independent monitor to ensure these are adhered to. LHR also wanted assurance that detained people were not denied rights they would be entitled to if they were refugees or asylum seekers.

Vincent Williams of the South African Migration Project said the draft Bill stifles the movement of people in Southern Africa and doesn't reflect the values of the African Renaissance and the New Partnership for African Development (NEPAD).

"It creates the context that South Africa is about to be swamped by thousands of unwashed illiterate immigrants and everybody must be mobilised against them. It even says education programmes will be conducted in other countries to discourage people from coming here. Where is the African Renaissance in that?"

"I am being extreme but I don't think it is a good piece of legislation. One of the aims of the legislation was to simplify the issue of permits, but they have now increased the number of permits and fragmented the application process."

Williams said almost 80 percent of the procedures normally done at Home Affairs would be farmed out to other government departments, educational institutions and universities. Citing an example, he said a student work permit would have to be verified by the relevant university then sent back to Home Affairs for approval. The administration and logistics of this would cause delays, add to the workload and increase costs. It would also leave the institution with the responsibility of monitoring the applicant's movements and reporting suspected contraventions to the authorities.

"I could decide I don't like the guy on the corner selling cigarettes and tell him if he doesn't give me R50 I'll report him to Home Affairs," he said.

He also questioned a clause calling for a chartered accountant to certify funds of people applying for permits. "We hear that there is already a shortage of chartered accountants and if the applicant turns out to be bankrupt then the Department can blame the accountant - that's not right."

"It also makes it difficult for investors if they have to be screened by a chartered accountant - instead of simplifying procedures, it complicates them."

He echoed Van Garderen's concerns on refugees saying that many people were being stopped and searched if they looked slightly different.

"Even South Africans are victims of that. It is very clear this Bill will leave Home Affairs with the responsibility of enforcing immigration laws by entering any premises and seizing any documents and arresting people."

He also questioned why certain exemptions given to farmers and mines weren't extended to other sectors for foreign contractors.

The issue of permits for foreign investors recently saw Buthelezi and his director general Billy Masetlha at loggerheads when Masetlha declared the chairman of a large mining group a prohibited person saying his work permit was not in order. Businesses used this as an example of how immigration rules were restricting foreign investment and discouraging investors from travelling to South Africa.

Home Affairs deputy director general Ivan Lambinon said the draft Bill was in its final stages with certain clauses being amended.

The much delayed new legislation, which has caused much division in parliament, must be enacted by 2 June.