Migration II: The South African migration policy landscape

Migration Policy – apartheid to present

• Immigrants did not fight for the freedom that South African’s earned – should they be included in the social and economic fabric of the nation?
• There is not enough work and welfare for South African citizens – should immigrants and asylum-seekers be permitted and protected?

For decades now, these questions have coloured the South African migration debate and policy landscape. They are informed by what some have labelled South African “exceptionalism” and others have understood as fear and insecurity. They lie beneath the country’s infamous record of xenophobia and a migration regime that is characteristically control-oriented, rights-averse and both hostile to and exploitative of low-skilled African immigrants.

It has been suggested that, during apartheid, immigration took place through a “two-gate” policy.[1] The “front gate” welcomed certain “desirable” white migrants that did not constitute a threat to “European culture”. The “back gate” tolerated “undesirable” and often clandestine African migrants for temporary periods, to satisfy the labour demands of mining and agriculture. Policing, detention and deportation were the primary means of managing “back gate” immigration.

Cornerstone to the National Party’s (NP’s) control-oriented approach were temporary work schemes – African migrants’ residence in South Africa was always provisional, and citizenship unattainable. This was extended in 1984 when the NP retracted nationality from black South Africans living in certain of the homelands, making them subject to immigration legislation in white South Africa.

Still today, work permit policy and immigrants’ rights are constricted regularly. For lack of other channels, low-skilled immigrants from Africa continue to enter the country illegally and deportation remains a mechanism of migration control. In 2018, 15 033 deportations took place, a significant proportion of which were “revolving door” movements – the deportation of multiple time offenders.[2]

Policy Timeline – summary

We present a timeline in the appendix below that documents the evolution of South African migration policy from the 1990s to today.

Such historical analysis is useful in highlighting pervasive themes – some enduring from the apartheid regime (A to D), others new to democratic South Africa (E to J):

1. a control over rights-based approach to immigration;
   
2. the high-skilled “desirable” vs. low-skilled African “undesirable” designation;
   
3. growing restrictionism matched with growing temporary (and irregular) low-skilled migration;
   
4. society-wide ambivalence and/or hostility towards immigrants under the nation-building project;
   
5. escalating mismanagement, inefficiency and corruption at the Department of Home Affairs (DHA);
   
6. the Minister of Home Affairs’ consolidation of power over the migration regime;
   
7. attention to the protection of immigrants’ rights being driven largely by court judgements;
   
8. the resulting demonisation by government of civil society actors;
   
9. South Africa’s reluctance to translate its regional migration discourse into policy; and
   
10. a stubborn policy line, slow to respond to regional developments and national demands.

Conclusion – a systematic erosion of rights

The timeline below demonstrates an almost consistently restrictive policy agenda, eased in the Mandela-era with the 1998 Refugees Act – which much ensuing policy has worked to undo. South Africa is certainly not alone on this restrictive trajectory. Each state is host to its own constellation of social, political and economic factors informing non-entrée. But South African anti-immigration sentiment is particular in its self-consciousness – driving a list of contradictions between its stated objectives and actual content.

The enduring themes in South African migration policy have explanations beyond apartheid’s bureaucratic inertia. With the partial de-racialisation of the political debate after apartheid, xenophobia looks to have risen to fill the cracks, imbuing the state’s systematic erosion of immigrants’ rights with legitimacy. The policy discourse suggests that the South Africans feels they owe immigrants very little in the way of protection and welfare – way out of touch with the contribution that immigrants make to the economy, detailed in the first brief.

The third brief looks to the data to determine whether the state’s response to immigration is either warranted or productive: What are current immigration levels and trends? When new restrictive policy is enforced, to what extent is immigration merely forced further into irregularity?

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Policy Timeline - Appendix

1991: Aliens Control Act

Content:

1. Enforces temporality[4], control and deterrence at the expense of newcomers’ rights [3]

• Applies a policing vision of immigration, characterised by the suspicion and coercion of migrants
• Deprives undocumented migrants of basic rights
• Leaves detention time and conditions of deportation to the discretion of immigration officers, the army or police.

This policy (labelled “apartheid’s last act”) consolidated all previous legislation regarding admission and residence of immigrants. It was declared unconstitutional in 1996 and subject to review by 2002, but remained in place for a decade of democratic rule.

The application of this Act coincided with the end of apartheid and the new nation-building project; South Africa becoming a more favourable destination for black migrants; the mine closures of the 1990s and the associated retrenchment of tens of thousands of mine workers (local and foreign). The Act, in its sanctioning of arbitrary authority over immigrants, was favourable to the new democratic government in this context.

Ultimately, the prolongation of apartheid-era migration policy resulted in the number of documented immigrants entering South Africa between 1990 and the early 2000s, dropping from 14 500 per year to around 3000 per year. In the same period, African immigration fell from 1 600 to around 800 new immigrants per year. Temporary work permits declined from 37 000 issued in 1990 to 16 000 in the year 2000.[5]

1995: Aliens Control Amendment Act

Amendments:

1. Expands protection

• Restricts the time spent by immigrants in detention without trial to 30 days before being subject to review

2. Refines migration policy to ensure skilled labour migration

• Establishes an Immigration Selection Board to ensure the selection of immigrants on the basis of their qualifications and experience

3. Securitises migration and guards against the abuse/ strain of the system

• Bolsters deportation policy and the punishments associated with undocumented migration.

South Africa was riding a wave of moral legitimacy after the first democratic election and, as a result, many aspects of the 1991 Aliens Control Act required revision. For example, the original Act provided that no decision of the DHA was reviewable by court and immigrants could be held in detention indefinitely, without judicial review. Pressure from human rights groups regarding this matter led to the 1995 Amendment, containing the policy changes above.

In most other aspects, the 1991 Act remained in place, and existing practices, administrations and institutions in charge of migration management ensured the continuity of the 1991 regime.

1998: Refugees Act

Content:

1. Expands protection

• Applies a rights-based approach to asylum, that rejects encampment and allows asylum-seekers freedom of movement
• Grants the right to work and education for refugees and asylum-seekers
• Consciously refuses to distinguish between asylum-seekers and refugees, given the presupposed legitimacy of the former’s claim.

During the 1990s, conflict in the Horn of Africa and Great Lakes regions was generating unprecedented numbers of asylum-seekers, while instability was mounting in the SADC region.

There was general consensus in the humanitarian space that South Africa was largely responsible for the economic and political chaos of its neighbours.[6] But even at this early stage, the asylum discourse was divided between advocates for sovereignty and advocates for refugee protection. No doubt some within the Government of National Unity were ambivalent about policy developments around migration and refugee protection.

Under Nelson Mandela (and an associated human rights and multilateral approach to global governance), South Africa ratified the UNHCR Convention Relating to the Status of Refugees in 1996. The 1998 Refugees Act went on to establish South Africa’s asylum regime as one of the most progressive in the world. But this was not reflective of public opinion of the time. In a South African Migration Project survey in 1999, 70% of respondents felt that refugees should never have the right to freedom of speech or movement.[7]

1997: Green Paper → 1999: White Paper → 2000: Draft Bill → 2002: Immigration Act

Content:

1. Refines migration policy to ensure skilled labour migration

• Implements different categories of work permit designed to facilitate easier access by South African employers to foreign skills on a strict temporary basis (corporate permits; business permits; treaty permits; and work permits – quota, general, exceptional skills, intra-company transfer)

2. Enforces temporality, control and deterrence at the expense of newcomers’ rights

• Establishes community enforcement measures which place onus on South African citizens to report the presence of foreigners in workplaces, schools and hotels
• Enhances border monitoring and efficient enforcement of immigration laws to clamp down on illegal migration and reduce the “pull factors” associated therewith.

Between 1994 and 2002, DHA Minister Buthelezi was tasked with the development of a new post-apartheid immigration policy framework. The process was informed by 1) the government’s internal division on migration, with Buthelezi’s anti-immigration stance winning out; 2) private sector interests and South Africa’s massive skills shortage, seen to be inhibiting economic growth; 3) a public consultation process including human rights groups.

Despite seven years of public hearings and negotiation, there is not a great deal of evidence to suggest that the consultative process shaped the legislation in any significant way.[8]

During the Act’s formulation, migration to South Africa was in decline and only 30% of immigrants were in unskilled positions.[9] Still, while the initial Green Paper was more rights-centric, the final Act reaffirmed a control agenda, revealing much continuity with previous legislation.

The Act’s skills drive was met with positive results. Between 2000 and 2008, temporary entry for workers increased from 59 000 to 137 000. In 2005, skilled migrants from Africa exceeded those from Europe for the first time, and between 2000 and 2004, legal immigration to South Africa grew from around 4 000 to 11 000 immigrants per annum.[10]

However, between 2000 and 2007, deportations increased from around 100 000 per year to 300 000. Much like the apartheid “two-gate” policy, this coincided with the restrictions placed on unskilled labour, and the growing informalisation of migrant labour employment.[11]

2004: Immigration Amendment Act

Amendments:

1. Allows more unchecked power to the DHA, the Director General or the Minister of Home Affairs

• Amends the Immigration Advisory Board to include fewer representatives from civil society and more appointments at the discretion of the Minister
• Dissolves the liaison committee on migration between the DHA and other departments and limits the Advisory Board’s functions
• Dissolves the internal anti-corruption unit ‘charged with the task of preventing, deterring, detecting and exposing corruption’ in the immigration regime, under the misleading subheading of ‘to correct certain important technical aspects of the Act’.

2. Refines migration policy to ensure skilled labour migration

• Reduces the number of quota permits available
• Adjusts work permit policy to apply to people of a specific ‘profession, category or class’

3. Enforces temporality, control and deterrence at the expense of newcomers’ rights

• Sanctions immigration officers to ‘take [a migrant lacking identity documents] into custody without a warrant’
• Decreases the appeal window for residence permits from 20 to 10 days
• Increases the length of time a person must be married to a South African to apply for citizenship
• Establishes Refugee Reception Offices (RROs) and the asylum transit visa, requiring asylum-seekers to report at an RRO within 14 days of entry into South Africa, or automatically become illegal.

In response to high deportation statistics, Mapisa-Nqakula, the new Minister of Home Affairs, had declared the need for a more ‘holistic’ review of immigration policy.[12] But despite its promising preamble, the 2004 Amendment abovementioned only deepened the initial Act’s restrictive agenda.

2005: SADC Protocol on the Facilitation of Movement of Persons

Content:

1. Takes an outwardly pro-African stance

• Sanctions visa-free travel between SADC states for a maximum of 90 days
• Aims towards liberal and harmonised permanent and temporary residence policy and work permit policy between SADC states.

As a sign of goodwill to the SADC, South Africa granted three amnesties for undocumented SADC migrants between 1996 and 2002. However, it rejected the 1995 Draft SADC Protocol on the Free Movement of People in 1997, proposing an alternative with minimal levels of harmonisation. This proposal was rejected by the SADC Secretariat and reformulated into the 2001 version.

South Africa was amongst 9 member states that had signed this version by 2005. But with less than two-thirds of the necessary ratifications, the Protocol is still not in force. But even if it was, it would remain subject to the domestic legislation of states. To retain control over its borders, South Africa continues to favour bilateral migratory agreements with SADC and AU members.

2007: Immigration Amendment Act

Amendments:

1. Takes an outwardly pro-African stance

• Makes changes in favour of cross-border traders – women in particular
• Relaxes requirement that African students pay repatriation deposits[13]

2. Refines migration policy to ensure skilled labour migration

• Limits work permit quotas to apply to foreigners who fall within ‘a specific professional category or within the specific occupational class’ as prescribed by the DHA for each sector.

At the 2007 Polokwane Conference, the ANC spoke to the need for a regional emphasis in migration policy.[14] Despite political rhetoric, the 2007 Immigration Amendment Act did little to shift the existing trajectory.

2008: Refugees Amendment Act

Amendments:

1. Enforces temporality, control and deterrence at the expense of asylum-newcomers’ rights

• Removes a refugee’s right to the ‘same’ basic healthcare and primary education as a South African
• Limits refugee status to those who are not citizens, permanent residents or recognised refugees in other countries
• Enforces the abandonment of asylum-seeker permits if they are not renewed 90 days after expiration
• Expands the Director General’s capacity to open or close an RRO and appoint officers
• Repeals the clause that says that the Act must be applied with due regard to the OAU Convention, UN Convention and Protocol
• Repeals the section that says that asylum-seekers should be treated as refugees until their status is determined
• Differentiates the extent of refugee rights and asylum-seeker rights, including the latter’s need to renew the asylum-seeker permit periodically at a designated RRO

2. Securitises migration and guards against the abuse/ strain of the system

• Instates biometric identification
• Cracks down on smugglers and fraudulent document holders

3. Expands protection

• Confers further protection to children and spouses of immigrants in line with international standards.

The 2008 Amendment Act constituted a response to increasing numbers of Zimbabwean migrants using the asylum regime to try to legalise their stay in South Africa. In general, the Amendment restricted asylum-seeker and refugee rights in an effort to deter new entrants.

2010: Dispensation of Zimbabweans Project

Content:

1. Takes an outwardly pro-African stance

2. Securitises migration and guards against the abuse/ strain of the system

• Imposes a short-term moratorium on deportations
• Establishes a free 90-day visa for new entrants
• Instates a 12-month special dispensation permit with the right to work or study for Zimbabweans already in South Africa.

Between 2005 and 2009, Zimbabweans were subject to massive deportations and abuses at the hands of smugglers and unresponsive policy. With a strained asylum system, the current migration regime was proving ill-equipped to deal with the “Zimbabwean Crisis”.

Finally, in 2010, the Dispensation of Zimbabweans Project (DZP) was announced. By the 31^st of December 2010, the day the moratorium closed, 275 762 applications for the DZP Permit had been received.[15]

2011: Immigration Amendment Act → 2011: Refugees Amendment Act

Amendments:

1. Enforces temporality, control and deterrence at the expense of newcomers’ rights

• Redefines Temporary Residence Permits to “visas”
• Reduces the asylum transit visa window period (for asylum-seekers to report to an RRO) from 14 to 5 days
• Requires asylum-seekers to register their children’s births at first application in order for them to be included as dependents
• Increases prison sentences significantly for those in contravention of the Act

2. Allows more unchecked power to the DHA, the Director General or the Minister of Home Affairs

• Recomposes the Immigration Advisory Board to expand the Minister’s power of appointment
• Sanctions the Minister to withdraw or designate a port of entry

3. Refines migration policy to ensure skilled labour migration

• Introduces the critical skills work visa and requalifies the business visa with added conditions of capital injection to the South African economy and employment creation.

In May 2008, xenophobic attacks across South African townships killed 62 people and displaced 150 000.[16] An Amendment to the Immigration Act was expected to address the issue of social cohesion and apply a more regional approach to migration with a clear connection to development. Instead, the 2011 amendments hardened conditions of control and access to South Africa for immigrants.

2015: Refugees Amendment Act → 2016: Immigration Amendment Act

Amendments:

1. Securitises migration and guards against the abuse/ strain of the system

• Extends the sanction on foreigners who overstay their visas

2. Expands protection

• Protects the confidentiality of asylum-seekers’ applications unless disclosure is in the public interest.

The 2016 Immigration Act was envisaged as a response to irregular migration.

2016: Border Management Authority Bill

Content:

1. Allows more unchecked power to the DHA, the Director General or the Minister of Home Affairs AND securitises migration

• Proposes the establishment, organisation and regulation of a single state entity (the Border Management Authority) to oversee all aspects of the movement of goods and people through South African borders
• Expands the DHA mandate to include functions of policing, defence, customs and tax collection, immigration and asylum
• Makes provisions for the Minister to exercise power of appointments, dismissals and regulation.

This controversial bill was envisaged against a growing global discourse of “non-entrée” and a national securitisation discourse that portrays migrants as fraudulent, criminal and illegal.

Having passed at the National Assembly, this Bill was stuck at the National Council of the Provinces between June 2017 and the dissolution of Parliament in 2019. The DHA is committed to fast-tracking it in 2019. Criticised as a ‘draconian effort’ by the DHA and Malusi Gigaba to expand control over South Africa’s ports of entry[17], concerns surround the Bill’s over-securitisation of migration; fragmentation of the country’s inter-departmental line functions and value chain; interruption of the constitutional mandate of the South African Police Service (SAPS) to prevent, combat and investigate crime; and undermining of the South African Revenue Service (SARS) with reference to the collection and administration of tax (import and export).[18]

2017: Refugees Amendment Act

Amendments:

1. Enforces temporality, control and deterrence at the expense of newcomers’ rights

• Excludes asylum-seekers from refugee status if they have failed to report to an RRO within 5 days of entering the country or have not entered through a recognised port of entry
• Limits the right to work for asylum-seekers to those who are 1) found unable to sustain themselves and family after a period of 4 months; 2) not supported by an NGO or the UNHCR; or 3) able to provide a letter of employment in the 6 months after the right to work is granted
• Introduces fine or imprisonment (of up to 5 years) for those in possession of an expired asylum-seeker visa
• Limits the time after which refugees can apply for permanent residence (from 5 to 10 years)

2. Allows more unchecked power to the DHA, the Director General or the Minister of Home Affairs

• Sanctions the Minister to evoke status from an individual or “category” of refugees and to disestablish an RRO if the Minister considers it necessary

3. Securitises migration and guards against the abuse/ strain of the system

• Cracks down on officials and employees who assist undocumented asylum-seekers.

Despite increasingly deterrent refugee legislation and the Zimbabwean Special Dispensation, South Africa continues to receive around 60 000 asylum-seekers each year. Close to 90% do not qualify for refugee status.[19]

By May 2015, 78 339 asylum-seeker permits were active and awaiting decision. Only 119 600 asylum-seekers had, since the adoption of the 1998 Refugees Act, acquired refugee status, and 96 971 of those refugees had active permits. While these figures are more modest than the anti-refugee discourse suggests, within-system corruption, chronic processing delays and mismanagement are of critical concern. Backlog in refugee status determination was exacerbated after 2010, when the DHA decided to close three of South Africa’s five RROs to new asylum applicants.

The 2017 Act neglected these issues, re-emphasising securitisation and deterrence and extending the Minister’s powers.

2017: White Paper on International Migration

Proposed amendments:

1. Refines migration policy to ensure skilled labour migration

• Delinks residency and citizenship and implements a points-based system such that South Africa can grant citizenship strategically
• Implements a flexible points-based system to ensure skilled migration, to replace the current ‘status quo’ of corporate visas typically used in mining and farming to recruit SADC nationals
• Emphasises the need to stem the “brain drain”

2. Securitises migration and guards against the abuse/ strain of the system

• Establishes a Border Management Authority and ‘externalises the borders’ through screening and risk-profiling
• Ensures risk-based and effective deportation and considers bilateral agreements with neighbouring states to this end

3. Takes an outwardly pro-African stance

• Considers regularisation programmes with new types of visas for SADC nationals and ensure stronger enforcement of immigration and labour laws

4. Enforces temporality, control and deterrence at the expense of newcomers’ rights

• Implements review of refugee status periodically to repatriate those whose origin has become safe
• Establishes asylum processing centres and withdraws asylum-seekers’ right to work, study and move freely

5. Expands protection

• Considers a national policy for integration of migrants.

Simultaneously, the 2017 White Paper defines its aims as the following:

• To pursue a risk-based and securitised approach to migration, which safeguards South Africa’s sovereignty and ensures the safety of its citizens
• To uproot a system that serves to perpetuate irregular migration, ‘which in turn leads to unacceptable levels of corruption, human rights abuses and national security risks’
• To overcome the ‘problem’ that national attitudes are influenced by ‘an unproductive debate’: ‘Human rights organisations and legal practitioners abuse loopholes in the system to secure the release of illegal immigrants, at the expense of the government’
• To improve on the largest gap in former legislation – that there is no sense of South Africa being an African state situated in the SADC
• To turn from a system which ‘by default strengthens colonial patterns of labour, production and trade’ by reserving the right to immigrate largely to those with high level skills or capital
• To expand high skill supply for the economy in a manner that obviates displacement of South Africans.

There are a number of issues and contradictions. The White Paper wants to combat colonial patterns of migration, reserving immigration and citizenship rights to those with high-level skills. This pushes low-skilled immigrants into irregularity, unless something addressing this trend materialises from the expressed ‘consideration’ of ‘regularisation programmes with new types of visas for SADC nationals’ – the most promising element of the White Paper.

The risk-based security approach (which assumes that foreign nationals and poor people from Africa have a higher chance of being criminals) contributes to a dangerous xenophobic narrative. This, together with blanket detention of asylum-seekers in processing centres, is contra the integration policy “under consideration”.

The paper vilifies human rights organisations, legal practitioners and the judicial process for driving policy. This is highly problematic, illustrating the DHA’s antipathy towards human rights and representatives of civil society.

 

Tove van Lennep
Researcher
tove@hsf.org.za

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[1] DHA. White Paper on International Migration, 2017; Segatti, A. 2011. ‘Reforming South African Immigration Policy in the Postapartheid Period (1990 – 2010)’ in Contemporary Migration to South Africa, p35