Are South Africa`s immigration policies enough?

Source: Opinion Piece by Gary S Eisenberg, Immigration lawyer, 03/12/2015

South Africa no longer has an immigration policy. This is not a
statement of criticism, but a jurisdictional fact. On 26 May 2014,
when the Immigration Act was amended, an entirely new paradigm of
immigration regulation came into operation, unprecedented in its
inflexibility and in its exclusionism. This is not a phenomenon that
suddenly appeared out of nothing, but it emerged from a history of
administrative corruption, the violation of South Africa`s borders and
Government`s frustrated response to it.


The foundations of Government`s frustration lie its realisation that
perhaps 15-20% of South Africa`s permanent resident population are
imposters. These are foreigners who misrepresented themselves as
offspring of at least one South African citizen parent or who acquired
permanent residence documents by fraud. It was a common practice for
foreigners, mostly from neighboring countries, to falsely represent
themselves by affidavit as the unregistered offspring of South African
parents and thereby easily had their births registered with the
Department of Home Affairs (DHA). More stringent protocols making
these late birth registrations more difficult came much later. It was
also common to acquire the right to permanent residence through
misrepresentation, bribery and fabrication. These practices occurred
when decision-making was decentralized to the provinces. Today these
impersonators use South African identity documents and are accepted as
native members of our population.


Added to this corroded landscape was the issue of false South African
passports. The British government imposed visa requirements on South
African passport holders in 2008 after concluding that our government
could not adequately resolve the lapses in passport securitization.
South Africa`s minister of Foreign Affairs who had borne the brunt of
British dissatisfaction with the level of corruption within the DHA
civic services directorate, responsible for passport processing and
issuance, was Nkosazana Dlamini-Zuma. When she became Minister of Home
Affairs in 2008, she took it upon herself to eradicate that corruption
and to restore law and order within the DHA. In May 2010, all
decisions on immigration applications were centralized at DHA
Headquarters in Pretoria and a security cordon began to be spun around
that hub. Since the operational systems were not properly in place
when the centralization project began between 60-70% of all
applications submitted at DHA offices were lost and could never be
traced. This trend continued into 2011.


With a flood of litigation ensued to resolve the paralysis, it became
patently clear how deep rooted the administrative bungling was. By
then the conservative "old-style" civil service had haemorrhaged from
the DHA leaving in its vacuum a public administration largely
uneducated and inexperience, which became a glaringly important
deficit in light of more complicated regulations coming into
force.


With the publication of the last amendments to the Immigration Act in
2011, it became blatantly clear that an immigration policy was
beginning to rapidly evolve into a border security policy. The cost of
heightened inefficiency within the DHA coupled with an increasingly
intolerant administrative attitude began to encroach on foreigners
like never before. This trend was reinforced by the DHA`s increased
inclusion into the so-called security cluster, together with
correctional services, state security and defense. With cadre
deployment within the DHA, strip clubs were pursued with vengeance
because human trafficking became a central focus of immigration
control, distorting and replacing the DHA`s previous emphasis on the
facilitation of entry of foreign workers, entrepreneurs and
retirees.


On 22 May 2014, the amended Immigration Act with its regulations were
published with a commencement date of 26 May, leaving the public with
a single business days` notice to prepare for the extensive changes
which the amendments brought into force. Once the new regime
commenced, it was not until mid-June that applications could be
submitted through VFS, contracted by the DHA to serve as its "front
counter". The new system has little redeeming character, both in terms
of substance and the manner in which the DHA has applied it.


These are some of its distinguishing characteristics:
• It is no longer possible to engage directly with the DHA by placing
before it immigration applications. At a substantially added expense,
all foreigners are forced to submit their applications and
administrative appeals personally through VFS in South Africa, or at
VFS and Consular offices internationally. The inconvenience and
expense of personal applications, especially in Asia and Russia, has
caused a loss of over R4.4 billion in tourism revenue;


• Foreigners, including foreign spouses of South Africans, can no
longer apply for their visas in South Africa while on visitor
visas;


• Foreigners can no longer apply for "general" work visas, or
extensions of existing such visas, without obtaining the support from
the Department of Labour (DOL). The problem persists that the DOL does
not support the employment of foreigners and for this reason the
general work visa category is largely paralyzed. While the
productivity of South Africa`s labour force has dwindled to the lowest
in 40 years, the DOL continues to protect the South African labour
market from the entry of skilled foreigners, contributing to South
Africa`s increasing un-competitiveness;


• The immigration system does not support work visas in the humanities
(including chefs, teachers, lawyers, philosophers, political analysts,
NGO and development consultants; business consultants; productivity
analysts; business and production managers), or exceptionally skilled
foreigners who do not have predetermined "critical skills``;


• Over 50% of all temporary and permanent residence immigration
applications have been refused, many of which are compliant
applications, forcing foreigners to appeal those adverse decisions
when VFS charges for each submission R1350, and the DHA is delinquent
in its lengthy delay in processing such appeals, up to 5-12 months
rendering the appeals process nugatory. Foreigners awaiting the
outcome of their applications or appeals after the expiry of their
temporary residence visas cannot depart South Africa without being
declared "undesirable" and prohibited from returning for up to 5
years. While these foreigners can appeal their undesirability such
appeals are either denied or take up to 6 months to be
adjudicated;


• The level of intellectual competence of consular officials at South
Africa`s foreign missions is generally low, and at many missions
attitudes of arrogance and xenophobia are frequently encountered
(including Berlin, The Hague, Shanghai, Moscow, Harare, Nairobi);


• The immigration regulatory regime is too bureaucratic to entice
foreign skills and entrepreneurs in the international competition for
skills and foreign direct investment.


The Conference Board, an internationally respected research
organization, has concluded that South Africa is experiencing negative
GDP growth, together with Zimbabwe and Ghana, lagging dangerously
behind all other Sub-Saharan economies. Professor Edmund Ferreira of
UNISA has found that since 1967, "output per worker per unit of
capital in South Africa has fallen from R7 297 to R4 924 a year – a
decline of 32.5%. From its peak in 1993, this measure of labour
productivity has fallen by 41.2%, bringing it down to the lowest level
in 46 years. South Africa today is less efficient than many of its
emerging market competitors, its labour force is uncompetitive and
labour productivity is much lower than that of the rest of the
developing world."


South Africa`s current immigration system blatantly protects South
Africa`s labour market from immigrants on the assumption that
foreigners are a threat to it. This protectionism is the product of
South Africa`s political machinations, not empirical research. The
overwhelming conclusion of current research confirms that immigrants
do not crowd out domestic employment opportunities but add to
employment. Moreover, immigration increases total factor productivity
significantly.


South Africa`s border security policy is unsustainable because the
costs of unimpeded productivity declines outweigh the gains from
excluding foreigners. The sooner the Minister of Home Affairs realises
that South Africa needs an immigration policy that is flexible and
encourages the inflow of financially self-sufficient, entrepreneurial,
and skilled immigrants the more likely South Africa will succeed to
compete in the modern world.