Migration V: Policy recommendations for the South African migration regime

Reframing immigration

South Africa's GDP growth slowed from 1.3% in 2017 to an estimated 0.7% in 2018, while the unemployment rate spiked to 29% in the second quarter of 2019 – its highest level since 2008.[1] It is no coincidence that xenophobic violence has broken out in the ensuing months. Though frequently reduced in government policy and discourse, the migration regime has a critical role to play in addressing this – the dire state of the economy and its intersection with the lives of South Africans.

South Africa benefits from legitimate, documented and skills-driven immigration. It should value highly skilled and/or entrepreneurial immigrants, as well as temporary immigrants able to fill low-skilled jobs in rural and border regions. In a globalised and developing economy, societal buy-in to immigration is vital and something that the government should take an active interest in fostering. The third brief in this series concludes that the DHA’s preoccupation with restrictionism seems to have compromised not only permanent and low-skilled immigration as intended, but temporary and skills-based migration – two inroads for immigrants that are vital to economic growth.

Preceding briefs sustain that immigration is inevitable. A restrictive regime, driven by xenophobia and political interest, forces immigration into irregularity. This emboldens a destructive spiral of criminality, exploitation, sub-decent work standards, costly deportation etc. leading to more xenophobia and restrictiveness. The result is an inefficient immigration regime preoccupied with control and deterrence at the expense of rights.

The following set of policy recommendations have been compiled from the findings of the first four briefs:

1. Relating to the ease of immigration and targeting and attracting critical skills

Eligibility criteria

Detailed in the second brief, immigration policy is repeatedly tightened to ensure skilled labour migration. To this end, the Immigration Act of 2002 created the quota permit, by which a certain number of work permits were issued for each industry per annum. Decisions regarding quotas were left to the discretion of the Department of Home Affairs (DHA) without sufficient consultation with business and largely out of sync with labour market realities. The critical skills permit (renamed to “visa”) was adopted in 2014 to replace the quota permit and has been met with similar criticism. The 2017 White Paper thus stresses the need for strengthened interdepartmental capacity on immigration eligibility, and a ‘points-based system’ for eligibility which could be combined with a list of critical skills.

Of course, both the current critical skills list and the White Paper’s proposed system require adequate labour market knowledge. Currently, because existing research is limited and unsystematic, little is known about immigrant and employment dynamics in specific sectors. One consequence is that the DHA’s slash in the critical skills list announced in 2018 omits a number of key skills.[2]

According to the 2011 Immigration Amendment Act, eligibility for a business visa requires applicants to commit a R5 million minimum investment to the South African economy, originating from outside of the country. This is five times the amount required in Singapore, for example[3] – irrational in the context of current brain drain and capital flight realities.

Moreover, there is no up-to-date data on the number of visas issued per year, or information around whether they are performing their intended functions.

• Update critical skills lists annually, based on regular data collection, labour intelligence reports, labour market information systems, institutional arrangements and adequate representation of government departments and the private sector
• Ensure thorough implementation and administration of the critical skills visa
• Detail the points-based system referred to in the White Paper, currently devoid of technical detail, with reference to international models like Canada, Australia, United Kingdom and New Zealand
• Revise the investment criteria for the business visa to make it competitive internationally
• Shift government discourse from the “poor African and undesirable immigrant” designation to focus on the range of skills that South Africa has to gain from immigrants from its neighbourhood

Applications, processing and border crossing

In the 2017/18 period, the DHA reported a progressive departure from the low permit processing averages of 2014/15. It expressed its objective to finalise the e-permitting system in the 2018/19 cycle. Its processing target for business and work visas is currently 8 weeks and for critical skills visas, 4 weeks.[4]

On the asylum front, applications have declined to pre-crisis levels (see the third brief) and the DHA must take full responsibility for continued processing delays.

Criticism is beginning to mount around delays in implementing the e-permitting system, that would replace the current “laborious visa application process” and unlock “phenomenal” job-creation potential in the tourism industry.[5]

Meanwhile, the potential of the African Continental Free Trade Area, depending on trade facilitation and ease of movement, risks being compromised by South Africa’s infamous border crossings (see the fourth brief) and xenophobia.

• Enhance the DHA’s capacity with regards to systems, technology and competence to ensure efficiency in the immigration and asylum regimes and to prevent claims against the state that cost the country millions each year
• Prioritise the e-permitting system and tighten processing targets for critical skills visas and business visas with the possibility of fast-tracking applications where urgent
• Prioritise the border post upgrades (see the fourth brief) and pursue them independently to the passing of the Border Management Authority (BMA) Bill with the inclusion of measures to facilitate trade and movement. Intensify international dialogue surrounding one-stop border posts and improve trade facilitation technology at the borders (updated biometrics systems, electronic single-window customs clearance systems, modern vehicle and goods scanners)
• Continue to implement visa waivers for identified countries and ensure a streamlined process for those wanting to do business in the region
• Have government articulate a strong anti-xenophobic and pro-migration stance domestically and in the neighbourhood

2. Relating to public support for immigration, which relies on accurate information, well-implemented policy, well-managed borders and integration

Information and government discourse

There is a public assumption that documented immigration and asylum levels are ever-increasing, even though these levels have dropped considerably in recent years. Similarly, the South African public associate immigrants with crime and unemployment, viewing this as the basis for xenophobia, despite there being no empirical evidence beneath this association (see the first brief).

Migration and displacement are connected to the deeply political questions of social transformation and economic inequity. The discourse is therefore embroiled in public perceptions and unsubstantiated political assertions, which have begun to override empirical information. Evidence-based analysis is crucial to provide policy guidance and inform public sentiment.

As it stands, Statistics South Africa (Stats SA) is severely underfunded.[6] The DHA has not published documented immigration data since 2015. SAPS crime statistics and information-sharing regarding immigrants are limited.[7] There is no systematic investigation into or estimation of undocumented migration. Though characteristically difficult to capture, there is a dearth of national emigration data. Insufficient information on border posts, immigrants’ economic contribution and labour market needs limit effective and responsive policy.

• Ensure the fulfilment of the DHA’s mandated data collection and information sharing functions, and capacitate existing staff and internal research bodies to collect and publish migration data on time
• Increase the capacity of affiliated research bodies like Stats SA and improve the DHA’s coordination therewith
• Implement data collection at the border posts (on migration flows, trade, border-crossing times, cross-border crime, illegal migration, the state of border post infrastructure etc.) to guide decision-making on resource allocation for the border upgrades
• Pursue regular data collection on immigrants as part of household surveys, including the labour force survey, with added indicators. Attention should be given to immigrant workers’ quality of employment and economic contribution
• Calculate and publish estimations of irregular migration and emigration annually
• Improve coordination and information-sharing structures between government departments dealing with data on migration (Department of Labour and DHA on critical skills lists; SARS, DHA and SAPS on border posts etc.)
• Compel government officials to be guided by solid empirical grounding in public assertions about immigrants

Border posts and corruption

For as long as borders are porous and border officials corrupt, there will be South Africans that regard the immigration regime as illegitimate and immigrants as illegal and undeserving.

At the same time, an overemphasis on borders and securitisation in policy and discourse only increases threat perception and xenophobia. What is needed is the measured management and implementation of current systems and borders.

• At the border posts, prioritise anti-corruption processes, data collection and development. Development should include improved infrastructure, technology (including updated biometric capturing) and the commencement of the pilot upgrades, which would contain the establishment of sterile border environments for incoming versus outgoing traffic and for commercial versus private vehicles. Fix border fences and enhance security (see the fourth brief for specific policy recommendations on border management)
• Abandon the contentious BMA Bill – which adds a further layer of government bureaucracy to border management under the auspices of the DHA. Instead, pursue an enhanced coordination structure between departments at the borders, shifting the focus from “control” to “coordination”, and from a costly and risky overhaul to fixing existing institutions
• Seriously engage with the existing culture of corruption within the immigration regime. Policy has been developed and tightened year on year (fines, bans, prison sentences) to discourage the soliciting of bribes and issuing of fraudulent documents, but lack of implementation has hampered improvement. Address supervision and surveillance capacity at border posts, Refugee Reception Offices and DHA offices
• Prioritise staffing and training of SAPS, DHA and other border personnel. It is unacceptable that in 2018, 73% of police officers at border posts felt that they were inadequately trained[8]

Regularisation versus deportation

Deportations from South Africa decreased considerably in the years following the introduction of the Dispensation for Zimbabweans Project (DZP) in 2010 – a regularisation program for undocumented Zimbabwean immigrants (see the first brief). The DZP has proven highly efficient in combatting undocumented immigration, strain on the asylum system and a costly reliance on deportation.

According to the DA’s Immigration Plan, there is a large category of immigrants in South Africa who are undocumented despite having followed due process as a result of DHA inefficiencies. They are often settled, integrated and working. The government has no clear policy to address this. Without documentation, immigrants can be denied their most basic rights to healthcare, education and work and their presence in South Africa cannot be monitored and managed.

• Maintain the level of responsiveness required of a national migration policy in South Africa’s regional context, to ensure that immigration is documented, and therefore manageable. Temporary migration visas and regularisation programs, like the DZP and its subsequent chapters, the LSP (Lesotho) and the ASP (Angola), are vital to this end. Similar programs, applying to Mozambican migrants for example, could save the country enormous expenditure on deportation if introduced timeously
• Given the perceived decrease in undocumented migrants in recent years, shift the focus from undocumented migration in every consecutive piece of policy, currently generating unfounded threat perception and xenophobia. Rather, focus on implementing policy – enforcing borders and finding and deporting immigrants that are here illegally
• Increase the size and capacity of the DHA’s Immigration Inspectorate responsible coordinating the investigation of non-compliance to immigration policy. This can be achieved through staffing and funding, efficient tracking equipment and through conducting regular research analysis on communities known to harbour immigrants
• Consider enhancing collaboration with neighbouring states on cross-border criminality and illegal immigration, possibly as part of the Continental Free Trade Area and SADC

Integration

The White Paper recognises that integration policies cannot be the responsibility of an individual government department. Rather, what is needed is a coherent whole-of-government approach, which brings together workers’ and employers’ organisations and other non-governmental actors.

• Pursue national awareness campaigns, or focused campaigns in communities or with trade unions expressing xenophobia, educating locals on myths surrounding immigrants as well as the benefits of immigration, integration and social cohesion
• Develop and give technical detail to the proposed integration policies listed in the White Paper, such as mechanisms to facilitate the provision of social security and the portability of social benefits
• Consider labour policies that encourage the dispersion of foreign-born workers across the country and, in coordination with the Department of Labour, make information available to immigrants about the opportunities (by sector) available in each region

3. Relating to the protection of immigrants’ rights and retaining critical skills

Temporality, permits and citizenship

The policy recommendations responding to xenophobia abovementioned, as well as a general improvement in South Africa’s economic, political and social environment, are required to combat the brain drain and retain critical skills. However, direct policy interventions relating to regularisation and citizenship require attention.

According to the DA Immigration Plan, acquiring permanent residence in South Africa can take anywhere from 30 day to 5 years – with no real explanation as to how the times of the process differ so drastically case by case. It is also ‘nearly impossible’ to find out what the status of an application is, even for DHA officials themselves. Similar problems plague the system in relation to all visa types for access to the country.

One of the main policy objectives of the White Paper is to enable South Africa to grant residence and citizenship status to foreign nationals ‘based on strategic, security considerations and the national priorities of South Africa’. This would be done by delinking residency and citizenship: ‘A points-based system will be used to determine whether the applicant will qualify for a short-term or a long-term residence visa. However, the number of years spent in the country will not qualify a person to apply for naturalisation.’

• Implement the stalled e-permitting system to resolve problems of corruption, inefficiency and uncertainty surrounding the issuing and renewal of visas to foreigners
• With regards to naturalisation and the delinking of residency and citizenship, the points-based system referred to in the White Paper should not be ‘flexible’ as it is described. The system should be prescriptive, granting citizenship efficiently and decisively on the basis of up-to-date critical skills lists and inter-departmental collaboration. It should not be left to the discretion of DHA officials as permitting has been in the past

Rights and work standards

The current immigration regime erodes the rights and channels of immigrants, pushing them into irregular and exploitative work. Sub-decent work standards and undocumented migration do not benefit locals (see the first brief). Moreover, the contribution that immigrants can make to the economy depends on their job prospects and conditions of work.

• Implement measures to counter discrimination in the labour market, including the proper monitoring and enforcement of labour standards at workplaces, companies and farms through the Special Investigating Unit, which conducted only 219 inspections in the 2017-18 reporting period[9]
• Align conditions at the Lindela Repatriation Centre with the Bill of Rights, and capacitate the current asylum system (Refugee Reception Offices, staff, infrastructure, technology) rather than implementing the White Paper’s suggested “asylum processing centres”, predicted to be both costly and abusive
• Shift the general focus of the immigration policy regime from deterrence and control to rights, implementation and management

Conclusion

Overall, the discourse needs to change from anti-immigration to pro- managed immigration – from immigrants themselves to government and the DHA.

The limited funds available for migration reform should be redirected from white elephant projects and money pits like the BMA, asylum processing centres and deportation (as the predominant solution to irregular migration). Government must move away from its preoccupation with revising and tightening policy (which is, in many cases, already too restrictive) to implementing existing policies. An economically viable balance must be found between 1) border enforcement and deportation, and 2) immigration channels and regularisation.

Overall, information and honesty are required from an immigration regime fraught with corruption, negligence and mismanagement that has, until now, used immigrants as scapegoats for high crime and unemployment.

Tove van Lennep
Researcher
tove@hsf.org.za

[1] Stats SA, Quarterly Labour Force Survey Q2: 2019