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]
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):
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?
1991: Aliens Control Act |
Content:
1. Enforces temporality[4], control and deterrence at the expense of newcomers’ rights [3]
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
2. Refines migration policy to ensure skilled labour migration
3. Securitises migration and guards against the abuse/ strain of the system
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
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
2. Enforces temporality, control and deterrence at the expense of newcomers’ rights
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
2. Refines migration policy to ensure skilled labour migration
3. Enforces temporality, control and deterrence at the expense of newcomers’ rights
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
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
2. Refines migration policy to ensure skilled labour migration
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
2. Securitises migration and guards against the abuse/ strain of the system
3. Expands protection
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
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 31st 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
2. Allows more unchecked power to the DHA, the Director General or the Minister of Home Affairs
3. Refines migration policy to ensure skilled labour migration
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
2. Expands protection
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
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
2. Allows more unchecked power to the DHA, the Director General or the Minister of Home Affairs
3. Securitises migration and guards against the abuse/ strain of the system
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
2. Securitises migration and guards against the abuse/ strain of the system
3. Takes an outwardly pro-African stance
4. Enforces temporality, control and deterrence at the expense of newcomers’ rights
5. Expands protection
Simultaneously, the 2017 White Paper defines its aims as the following:
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
[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
[2] DHA. Annual Reports 2003 - 2018
[3]Segatti, A. 2011. ‘Reforming South African Immigration Policy in the Postapartheid Period (1990 – 2010)’ in Contemporary Migration to South Africa, p38
[4] ‘Temporality’ is here defined as the temporary nature of a foreigner’s right or permit to live or work in South Africa
[5]Crush, J. 2011. ‘Complex Movements, Confused Responses: Labour Migration in South Africa’ in South African Migration Programme Policy Brief, no 25, August 2011, p10
[6]Segatti, A. 2011. ‘Reforming South African Immigration Policy in the Postapartheid Period (1990 – 2010)’ in Contemporary Migration to South Africa, p41
[7]Crush, J. Dodson, B. 2006. ‘Another Lost Decade: The failures of South Africa’s post-apartheid migration policy’ in Journal for Economic and Social Geography, 98(4), p445
[8]Segatti, A. 2011. ‘Reforming South African Immigration Policy in the Postapartheid Period (1990 – 2010)’ in Contemporary Migration to South Africa, p42
[9]Crush, J. 2011. ‘Complex Movements, Confused Responses: Labour Migration in South Africa’ in South African Migration Programme Policy Brief, no 25, August 2011, p7
[10]Ibid, pp12-14
[11]Ibid, p16
[12]Crush, J. Dodson, B. 2006. ‘Another Lost Decade: The failures of South Africa’s post-apartheid migration policy’ in Journal for Economic and Social Geography, 98(4), p437
[13]Segatti, A. 2011. ‘Reforming South African Immigration Policy in the Postapartheid Period (1990 – 2010)’ in Contemporary Migration to South Africa, p54
[14]Ibid, p53 (ANC 2007)
[15]Crush, J. 2011. ‘Complex Movements, Confused Responses: Labour Migration in South Africa’ in South African Migration Programme Policy Brief, no 25, August 2011, p19
[16]Segatti, A. 2011. ‘Reforming South African Immigration Policy in the Postapartheid Period (1990 – 2010)’ in Contemporary Migration to South Africa, p33
[17]Daily Maverick, 19 April 2018. In the Post-Zuma era, the Border Management Bill still smacks of securitisation
[18] PMG, 20 February 2018. Border Management Authority Bill: National Treasury, SARS & SANDF concerns; Botha, C. 20 June 2018. In the shadow of the Border Management Authority Bill
[19]DHA. White Paper on International Migration, 2017