New immigration legislation in South Africa

On 26 August 2011, a new immigration law, the Immigration Amendment Act (Act 13 of 2011) was passed. Under this new law, several amendments to existing immigration law in South Africa will be instituted, if and when the new law is made effective, which still hasn’t happened yet.

Under this new legislation, there are two provisions which are a source of concern and need to be investigated further.

Firstly, the amendment changes the way that applicants are allowed to approach the Department of Home Affairs. What this means is that immigrants will no longer be able to make use of a lawyer, such as an attorney or advocate, or a registered Immigration Practitioner, to make representations to the Department. This poses an obvious question – how will immigrants, in a new country and possibly trying to cope in a new language, be able to make the necessary representations to the Department? Who is going to assist them? And if there is no way of registering as an immigration practitioner, how will immigrants know who is legitimate and who isn’t? This question needs to be answered, soon.

The second issue is that all immigration applications will have to be submitted in person. This is more understandable, because the Minister has expressed the criticism in the past that the Department is granting permits to people who have never sat in a Department office and been interviewed. For security reasons, it makes sense to be able to see someone in person, face to face, before granting them a permit. If South Africa implements this requirement, it could lead to a situation in which South Africa’s standing in the world improves, and other countries will be more enthusiastic about granting visas to South African nationals, making trade and travel easier.

Not everyone speaks the same language.

But the central objection to both of these amendments is one of capacity in the Department. It is unfortunately the case that Home Affairs officials have been known to supply incorrect or confusing advice from time to time. I am not going to examine the reasons for that kind of situation, but the officials are already working extremely hard. Every day, they process many forms. Is it realistic to expect them to cope with immigrants who can hardly speak a South African language and who have practically no idea as to how to make their permit applications? And is this fair on the immigrants who come to South Africa to do business and contribute to the economy? Why should a person who is contributing millions of rands to the economy be subjected to the embarrassment of an awkward interview in which the official cannot speak to him in his home language and then provides him with the wrong information about his application?

What is that kind of experience going to do for South Africa’s reputation as a destination for investors?

Of course, this is a very pessimistic outlook. But it remains to be seen what steps the Department is going to take to facilitate these amendments. The Department is, essentially, a national security organisation, so if the Minister is convinced that such measures are necessary, we can hardly fault her on that. It is hard to determine what data, such as crime statistics or international precedent, she is using to motivate the legislative framework that we are seeing now. There could be a very good reason, involving national security, for the amendments. Or it could be an attempt to raise the standard of the Department, in which case, as mentioned before, it could have a knock-on benefit for the country. My concern is just that the amendments may be premature, in that the capacity may not exist (yet) in the Department to implement them.

However, the law has been passed. It remains to be seen how much effort the Department is making in implementing it, and according to what time frame.