Presentation by the dept home affairs.26 august2014

Briefing to the Portfolio Committee on Home Affairs

Implementation of Immigration Amendment Acts 2007 and 2011 and Immigration Regulations

Director General: Department of Home Affairs Mr. Mkuseli Apleni

26 August 2014

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CONTENTS

1. Purpose of the presentation

2. Background to the amendments to the Immigration Act, 2002

3. Summary of key changes introduced by legislative

amendments

4. Immigration Regulations and their implications

5. Status of the Immigration Amendment Act 2007 and 2011

and the Immigration Regulations 2014

6. Publication of Notices required in the Act / Regulations

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1. PURPOSE

To brief the Portfolio Committee on Home Affairs on:

• the key changes introduced by the legislative amendments

• the contents/provisions of the Immigration Regulations

• the status of the Immigration Amendment Acts, 2007 and 2011 and the Immigration regulations, 2014

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2. BACKGROUND TO THE AMENDMENTS TO THE IMMIGRATION

ACT , 2002

South Africans embrace the full integration of South Africainto the family of nations after 1994. The DHA issues about600, 000 passports annually to citizens who want to travel.

Rising numbers of tourists contribute to our economy andSA is a premium venue for large international events.

In 2013-2014 South Africa welcomed 13.5 million foreignnationals who visited South Africa as visitors.

The National Development Plan (NDP) points to the urgentneed to attract international migrants with critical skills.

The DHA is committed to facilitating the entry and exit oflegitimate travellers efficiently and humanely.

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2. BACKGROUND TO THE AMENDMENTS (Cont. ..)

The DHA also has a Constitutional mandate to defend thecountry’s sovereignty, security and public safety. Allimmigration decisions must be based on an assessment ofrisk to SA.

South Africa faces a range of risks and threats fromtransnational criminal syndicates who smuggle or trafficpeople, drugs, protected species and launder money.

Legislation prior to the amendments was based on tick-boxcompliance and not on effective screening of applicants.

Abuse of the Refugees Act is also rife, with over 90% ofapplicants only seeking economic opportunities.

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2. BACKGROUND TO THE AMENDMENTS (Cont. ..)

Often, those who overstay or are bogus asylum seekers,seek to acquire legal status through marriages ofconvenience or acquiring identity documents fraudulently.

Criminal syndicates work with corrupt officials and otherSouth Africans to facilitate these illegal transactions.

The consequences for South Africa and for foreign migrantsare serious. Amongst others, there is the risk to nationalsecurity, social stability and pressure on social services.

The undermining of immigration laws also prevents orderlymigration. This leads to the extortion, abuse and exploitationof migrants who have fraudulent documents or nodocuments. They can be trafficked or forced into crime.

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Risk-based management of immigration

RSA

Border

Off-shore

Key principles

• Integrated approach

• Single view of traveler's status and transactions

• Professionalised staff

• Enforcement of laws

• Keep risks away from SA

Immigration Management

Requires attention to:

• Role of SA mission abroad

• Bilateral and multilateral relations and agreements

• Immigration issues, trends and strategies

• Ports of entry and use of biometrics for travellers

• Cooperation on refugee matters

OPERATIONAL CENTRE – Access to data from relevant systems. Analyses, assesses risks against knowledge of countries and traveller. Issues data, reports and alerts. Monitors stop-lists. Liaises with other departments and agencies.

Mr Smith applies for visa at SA

mission

Visa and permitting system– Visa issued after pro-active risk assessment and checks done by officials in Mission and SA using DHA system

Mr Smith presents visa at ORT

Mr Smith overstays and Act is applied

Advance Passenger Processing (APP)Data sent to operational centre and he is cleared to board after various checks

Immigration Officer at Port of Entry does first-line checks

Mr Smith departs

Inspectorate enforces law and monitors updated systems to ensure compliance

Mr Smith departs

from airport

Joe is a citizen of RSA

“Joe” is from Horn of Africa or Asia and is seeking opportunities

Pays smuggling syndicate $$$ and gets visa and ticket

Neighbouring Country

Jumps border, gets picked up and taken to safe house

Applies for asylum

Runs small shop, linked to illicit economy, syndicates

Fraudulent marriage

Residence permit –divorces/ bring real wife

Asylum claim rejected

Impacts on

economy, society,

security !!

Security issues

• Could have false identity

• Use weak processes and fraudulent documents of several

departments

• Poor and uncoordinated data on the how, why, where and what of “Joe”

• Poor monitoring and enforcement by several departments and spheres of

government

• Gaps exploited in policies, laws and processes of several departments

Bribes paid both sides of border!

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2. Typical cases from case files

CASE (1) CASE (2)

• “Max”*, a XXXX immigrant, was

granted asylum in 1988

• In 1999 he married a South

African woman while working at

the embassy of the country he

said he fled from.

• He received permanent residence

status and was naturalised in

2008.

• Shortly afterwards he divorced his

“wife” and married another woman

with whom he already had a child.

• “Anelie”* was six when she was

smuggled into SA in a car boot.

• She was beaten and abused.

Teachers and social workers tried

and failed to help her . She ran

away and spent her childhood on

the streets.

• “Anelie” was raped and

impregnated and finally admitted

at Welfare institution and was

helped.

• She is currently living with her

sister.

*SOME DETAILS HAVE BEEN ALTERED TO PROTECT IDENTITY

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CASE (3) CASE (4)

• “Mr Nkomo”* entered SA in 2002 on

a study permit, which was valid until

2006

• Obtains B Comm from University of

XXXX in 2006

• 2005 pays DHA official to obtain a

fraudulent ID application

• “Mr Nkomo”* used his original

passport to visit his own country

several times.

• He was employed by a SA bank

• His ID document indicates that he

took part in the 2009 elections

• “Miriam”*, an Ethiopian, was issued

with an asylum seeker (Section 22)

permit in 2010. The permit expired and

she did not apply for an extension. She

over-stayed until 2011.

• DHA records show Miriam’s

application was adjudicated and

dismissed as unfounded.

• A corrupt DHA official issued her with

a Section 24 document stating she was

granted refugee status.

• The Refugee Appeal Board confirmed

they had never received an appeal

application from Miriam.

2. Typical cases from case files (cont...)

Loopholes in the Immigration & Refugee Acts were systematically used by syndicates to sell South African identity and citizenship.

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Some examples of people from across the globe who are making a

valuable contribution in South Africa in many areas

Prof Suprakas Sinha Ray, from India

Director Nanotechnology CSIR (crucial new industry)

Professor O. D. Makinde from Nigeria is Senior

Director of the Institute for Advanced Research in Mathematics at Cape

Peninsula Univ. of Tech.

(Leading advocate for maths education)

Kennedy Chinyowa from Zimbabwe Head of Dramatic

Arts & senior lecturer University of the Witwatersrand.

Well-known foreigners in SA football (PSL)

• I. Sarr - Senegal

• G.K. Gibeto - Ethopia

• E. Pelembe - Mozambique

• C. Mbesuma – Zambia

• K. Papic - Serbia

Martin Zimmerman

CEO Mercedes Benz

(Germany)

Ebby Essoka

CEO Standard Bank

(France)

Prof. Tonyfoley

Commissioning Science Leader SKA-

largest science project globally

(UK)

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3. SUMMARY OF KEY CHANGES INTRODUCED BY LEGISLATIVE

AMENDMENTS

The Act and its Regulations have been amended torefer to all categories of temporary residence permits asvisas. This is aimed at making a clear distinctionbetween short stay visas and permanent residencepermits. The only permits to remain as permits arepermanent residence permits, which are longer stay inthe Republic

All new applications for visas will be made at ourMissions in person and this will allow theimplementation of the risk-based approach toimmigration management, including the verification ofapplicants prior to arrival in the Republic

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A change of status or visa terms and conditions fromwithin the Republic will not be permitted for persons onvisitor’s or medical treatment visas. Persons who wantto effect such changes will need to submit applicationfrom outside the Republic

Study visas will be issued for the duration of the studiesrather than having to renew such visas on a yearlybasis

Business visas are to be issued for businesses thatenhance the national interest. In this regard, relevantDepartments (DTI and DoL) will first assess thefeasibility of the prospective business venture, includingcompliance with labour laws and the benefit it wouldhave for the South African economy, before a businessvisa is issued.


AMENDMENTS (Cont…)

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A list of undesirable businesses (not encouraged forinvestment and issuing of visas) was published inconsultation with the Minister of Trade and Industry,however it does not mean that such businesses cannotoperate.

An investment amount was also revised in consultationwith the Minister of Trade and Industry – from R2.5m toR5m



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After consultation with the relevant Departments and in view ofthe now enacted Employment Services Act (Bill introduced byMinister of Labour at that time), a decision was taken to repealthe quota and exceptional skills works permits and to introducea category of critical skills work visas to assist in the attractionof critical skills to the Republic.

A critical skills list was prepared in consultation with businessand Government Departments and published on 3 June 2014.

An intra-company transfer work visa will be issued for a periodof four years instead of the current two years.

Instead of paying repatriation deposit upon application for avisa, employers are now required to ensure and makeguarantees that their foreign employees will comply with theterms and conditions of their visas and leave the Republic upontermination of contract or employment or expiry of the visa.Costs of deportation may be demanded based on guarantees.



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The convictions for human smuggling and traffickinghave now been included alongside genocide, terrorism,murder, torture, drug-related charges, moneylaundering and kidnapping. Previously persons whohad outstanding warrants or convictions for offencesrelating to human smuggling and trafficking could not beproperly dealt with and would qualify visas.

An amendment has been introduced to provide that anyperson who overstays the duration of a visa or permitfor a particular number of days at a time is now listed asan undesirable person who is prevented from returningto the Republic for a prescribed period of time. Suchpersons no longer have the option of paying a fine forthe transgression



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4. IMMIGRATION REGULATIONS AND IMPLICATIONS

Regulation Benefit

The Regulations require foreigners to be in

possession of a machine readable passport.

However, for countries that are still issuing non-

machine readable passports, their citizens will be

allowed entry until 24 November 2015. This is in

terms of ICAO standards

• Enhances security of the State and all persons

residing in the Republic

For applicants applying for a visa because they

are in a permanent homosexual or heterosexual

relationship, the Act requires a notarial

agreement signed by both parties attesting that

the permanent homosexual or heterosexual

relationship has existed for at least two years

before the date of application for a relevant visa

or permanent residence permit and that the

relationship still exists to the exclusion of any

other person

• This is to dissuade abuse as individuals would

produce an affidavit which has no legal and

binding consequences and therefore easily

deposed to for mere compliance to obtain a visa

For a person travelling with a child, the

Regulations require that the person must be in

possession of an unabridged birth certificate, and

a consent affidavit from the parent or parents of

the child authorising the person to travel with the

child.

• This is in line with South Africa’s international

obligation to curb child trafficking and also in line

with the provisions of the Childrens’ Act, 2005

(Act No. 38 of 2005). This will further assist in

curbing abduction and kidnapping of children,

sometimes even by one of the parents

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Regulation Benefits

The Act and the Regulations require the Minister to

designate places of entry and exit and to gazette such

designation

• The publication of the designations in the

Gazette will enable all persons to know which

areas have been declared as International

Ports of Entry.

Transit visa shall―

(a) in the case of air transit, be issued for a period not

exceeding 24 hours; and

(b) in the case of land transit, be issued for a period not

exceeding 48 hours.

• Transit visas assist in identifying persons

travelling through the Republic – security

measure - and in the event such persons enter

RSA irregularly from the country they transited

to, the Department would be in a position to

detect their irregular movements.

Visitor’s visa: a return air ticket or proof of reservation

thereof will be required and proof of sufficient financial

means in the form of a three months bank statement,

cash available to the applicant, traveller cheque, etc.

• This serves as a measure to ensure that a

person would return to his or her country, and

would not burden the State to deport him or

her. Repatriation deposits are no longer

required

Study visa will be issued for the duration of the period of

study and a student at a University or FET will be

allowed to conduct part-time work for a period not

exceeding 20 hours per week

• This will be to the benefit of students and

learners alike as they will not be required to

renew their visas annually

The Act / Regulations re-emphasize that a treaty visa will

be issued to a foreigner who is participating in a

programme where an organ of state is party to.

• No changes have been made to this

Regulation – remained the same.

4. IMMIGRATION REGULATIONS AND IMPLICATIONS (cont.)

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Regulation Benefits

No business visa will be issued to a

business that has been declared

undesirable.

At least 60% of the total staff compliment

employed in the operations of the

business must be South African citizens

or permanent residence

• To dissuade the mushrooming of businesses that are not

in the national interest and do not provide growth to the

domestic economy.

• This is in line with Government’s key priorities – job

creation – previously it was only 5 persons that the

holder of a business visa was required to employ

The regulations re-emphasizes the

issuance of a crew visa for officers or

members of the crew of a public

conveyance

• No changes were made to this regulation – still as it was

before

For a relative’s visa to be issued to a

foreigner, such foreigner must submit

proof of kinship in the second step in the

form of an unabridged birth certificate

and, where necessary, paternity test

results

• This is to curb the abuse of the immigration laws of the

Republic as well as ascertaining the intention of the

applicant, as well as the relationship to the person who is

being said to be relative.

Work visa; general, critical skills and intra-

company transfer work visa

Department of Labour will issue a

certificate confirming compliance with

labour standards

• This is to ensure that Employers recruit locally and only

source the skill if not available in the Republic. The

Employer must also prove compliance with the labour

standards such as registration with UIF, COIDA Fund

and have suitable working conditions, as a measure to

protect employees from working in unsuitable conditions


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Regulation Benefits

Quota and exceptional skills permits have been

repealed and instead a critical skills work visa has

been introduced.

• A critical skills work visa may be issued to a

person without having employment but a for

period of specific period (not maximum period),

with a condition to find employment within 12

months.

Intra-company transfer work visa will be issued for

a period not exceeding four years and is not

renewable. Previously, an intra-company transfer

work visa was issued for a period not exceeding

two years.

• This will benefit the employees who are

transferred by the parent company to

subsidiaries in the Republic.

Corporate visa: at least 60% of the total staff

compliment must be South African citizens or

permanent residents

A corporate worker certificate will not be issued

beyond the validity period of the corporate visa

The Departments of Labour and Trade and

Industry will also be involved

• This is to ensure that Employers recruit locally

and only source the skill if not available in the

Republic. The Employer must also prove

compliance with the labour standards such as

registration with UIF, COIDA Fund and have

suitable working conditions, as a measure to

protect employees from working in unsuitable

conditions

An asylum transit visa will be issued at a port of

entry and will be valid for a period of five days to

allow the person to approach the nearest

Refugees reception centre


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Regulation Benefits

Permanent residence permits will

also be issued to persons who

possesses critical skills, though

not all holders, upon

consideration

• Not all listed skills may warrants issuance of

permanent resident.

Prohibited persons do not qualify

for a port of entry visa, visa or

admission into the Republic

• This will assist in dealing with those who have

criminal offences not to gain entry into the Republic.

Overstayers will no longer pay a

fine but will be declared

undesirable for a prescribed

period

• This serves as a deterrent as a fine has proved not

be a deterrent enough.

The Act and the Regulations

require conveyancers are

required to comply with the

Advanced Passenger Processing

and to provide passenger name

records

• This assist the Republic in knowing in advance who

is intending to travel to the Republic and offers an

opportunity to issue a boarding advice. Furthermore,

making it compulsory will enable the Dept to can

charge a reasonable fee for payment of the system.

All security checks are done by the system within

seconds of receiving the data from the Airlines.


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5. STATUS: IMMIGRATION AMENDMENT ACTS, 2007 AND 2011

AND THE IMMIGRATION REGULATIONS, 2014

The Immigration Amendment Acts, 2007 and 2011 (“theAmendment Act”) came into operation on 26 May 2014(Proclamation R32, 2014 and R33, 2014).

The Immigration Regulations, 2014 came into operationon 26 May 2014. These Regulations repealed (entirely)the Immigration Regulations made in 2005.

The Regulations on Fees published in 2005 are stillapplicable as they were not repealed.

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6. PUBLICATION OF NOTICES REQUIRED IN THE ACT /

REGULATIONS

The Notices relating to the following were published on3 June 2014:

Minimum amounts - pension or irrevocable annuityor retirement account - retired person visa orpermanent residence permit

Financial guarantees - corporate applicant - defraydeportation and other related costs - corporate visa

Proof of sufficient financial means

Minimum net worth - permanent residence permit

Administrative fines

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REGULATIONS (cont.)

Financial assurance - relative’s visa

Costs of detention and maintenance

Amount to be forfeited by person in charge or ownerof conveyance

Critical skills list

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REGULATIONS (cont.)

The Notices relating to the following were publishedon 15 July 2014:

Financial or capital contribution for businesses inrespect of business visas and permanent residencepermits

List of undesirable business undertakings in relation toan application for business visa

Businesses qualifying for reduction or waiver ofcapitalisation requirements as determined to be in thenational interest in relation to a business visa

List of undesirable business undertakings in relation toan application for corporate visa

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THANK YOU

Presentation by the dept home affairs.26 august2014

Government & Nonprofit

Transcript of Presentation by the dept home affairs.26 august2014