Minister Aaron Motsoaledi: Release of Final White Paper on Citizenship, Immigration and Refugee Protection

Press statement on the release of the Final White Paper on Citizenship, Immigration and Refugee Protection: Towards a complete overhaul of the migration system in South Africa

The Director-General of the Department of Home Affairs;
Commissioner: Border Management Authority;
Members of the Refugee Appeal Authority;
Members of the Standing Committee on Refugee Affairs;
Senior Management of the Department of Home Affairs;
Journalists of various media houses;
All guests present today.

0. On 10 November 2023, the Department of Home Affairs ("DHA") published in the Government Gazette no 49690, the White Paper on Citizenship, Immigration and Refugee Protection: Towards A Complete Overhaul of the Migration System in South Africa for public comments.
1. The date for submission of comments was extended to 31 January 2024 by way of notice published in the Government notice no 4240, 8 January 2024.

2. The responses have been overwhelming. Individuals (citizens, asylum seekers and refugees), public interest groups, companies, national and local governments departments, Premiers, Research Institutes, political parties, International Commission of Jurists, United Nations High Commissioner for Refugees ("UNHCR"), International Organization for Migration ("IOM"), United Nations Children's Fund ("UNICEF") and many others made their voices heard and made constructive comments.

3. The DHA team and the Minister conducted public hearings in all the nine provinces. The Minister conducted several radio and television interviews on the White Paper with participation by members of the public. The outcome of the engagements and public comments is that the policy positions adopted in the White Paper enjoy wide support. Only a handful public interest groups are opposed to selected policy positions such as, withdrawal from the 1951 Refugee Convention, the 1967 Protocol and re-acceding with reservations, proposed repeal of section 4 (3) of the South African Citizenship Act and the first safe country principle.

4. The DHA has carefully and duly considered all the oral and written submissions. This final White Paper is a product of the said robust engagements.
5. Cabinet approved the final White Paper on Wednesday, 10 April 2024 and has been published in the Government Gazette number 50530 on 17 April 2024. A copy of the Gazette is annexed hereto marked "A".

Migration

6. Conflicts, armed violence, disasters, pandemics, climate change, seeking better business and work opportunities and other factors force people to leave their countries of origin to other countries.

7. Public comments on the Draft White Paper re-affirmed the urgent need to adopt effective policy measures and legislative interventions dealing with migration in South Africa.

8. South Africa has different pieces of legislation dealing with citizenship, immigration and refugee protection, namely the Citizenship Act , Immigration Act and Refugees Act as amended. In fact, the South African Citizenship Act is a relic of the colonial era and a replica of the 1949 Citizenship Act under the Union of South Africa. In practice, these pieces of legislation not in harmony with each other. Piece-meal amendments were made without any policy framework whatsoever.

Refugee Protection

9. The United Nations adopted the 1951 United Nations Refugees Convention ("1951 Convention") and the 1967 Protocol relating to the Status of Refugees ("1967 Protocol"). Meanwhile the Organization of African Unity ("OAU") [now AU] endorsed its own 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969 ("1969 OAU Convention") in order to deal with the peculiar circumstances of migration and refugees in Africa. This was done in the spirit of Pan - Africanism.

10. The 1969 OAU Convention prohibited refusal of entry, expulsion or extradition of asylum seekers and refugees and also provides for certain exclusions on certain grounds. In fact, the refugee laws in most of the AU countries based on the 1969 OAU Convention are much more stringent than the Refugees Act in South Africa. By the way, the principle of Pan-Africanism does not promote illegal entry in the countries that are signatory to the 1969 OAU Convention.

Asylum during the apartheid era

11. Asylum seekers and refugees were not recognized in South Africa until 1993. During the apartheid regime, South Africa did not accede to any international and regional conventions relating to the status of refugees and asylum seekers.
11. South Africa administered its refugee policy on an ad hoc basis, granting refugee status mostly to white nationals from Zimbabwe, Portugal and Mozambique. The Aliens Control Act governed immigration during the apartheid era. The preference of whites over "non-whites" (blacks) became the focus of the immigration policy.

Asylum during the democratic era

12. The Refugees Act was passed in 1998. In line with the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention, the Refugees Act prohibited refusal of entry, expulsion or extradition of asylum seekers and refugees.

Accession to international agreements

13. In 1996, two years after the first democratic elections, South Africa acceded to various international agreements such as, the 1951 Convention, the 1967 Protocol , the 1969 OAU Convention and other international instruments. This was done without the government having developed a clear policy on migration, including refugee protection.

14. The government did not make reservations and exceptions permitted in terms of international law.

15. Both the 1951 Convention and the 1967 Protocol provide for reservations. In terms article 42 of the 1951 Convention, any State may make reservations to articles of the Convention other than articles 1, 3, 4, 16(1), 33, 36-46 inclusive.

16. Article VII of the 1967 Protocol provides that any State may make reservations in respect of articles IV and 1 other than articles 1, 3, 4, 16(1) and 33.

17. Many countries made reservations in respect of both the 1951 Convention and 1967 Protocol .

18. South Africa did not make any reservations in respect of the 1951 Convention and 1967 Protocol. This must be corrected.

Policy framework recommendations

19. The White Paper proposes that the Government of the Republic of South Africa must review and/or withdraw from the 1951 Convention and the 1967 Protocol with a view to accede to them with reservations like many other countries. All what the South African Government intends achieving, is to exercise its rights granted in terms article 42 of the 1951 Convention and article VII of the 1967 Protocol and make reservations accordingly.

20. The Refugee Protection and Immigration legislation must provide for reservations and exceptions as contained in the 1951 Convention and the 1969 OAU Convention. Particularly in that South Africa does not have the resources to grant the socio-economic rights envisaged in the 1951 Convention.

Citizenship

Genesis of the 1949 Citizenship Act, Citizenship Act, 1995 and other laws

21. The current citizenship legislation has its roots in the 1949 Citizenship Act ("1949 Act") and other relevant successive laws governing citizenship. The 1949 Act and other relevant laws were not only discriminatory on the basis of race and sex but the "natives" (black people) were totally excluded from the South African citizenship regime.

22. The South African Citizenship Act provides for three main forms of citizenship, namely, citizenship by birth, citizenship by descent and citizenship by naturalization .

Policy framework: Proposals (Citizenship)

23. The White Paper makes radical proposals regarding citizenship:

23.1 Section 4 (3) of the Citizenship Act requires to be reviewed, together with other sections, including those relating to citizenship by naturalization during the legislative process.

23.2 The United States of America, Canada, Switzerland and Britain are developed countries with resources that far exceed those of South Africa, have developed strict immigration, citizenship and refugee laws in order to protect the rights of their citizens.

23.3 The Citizenship Act and Births and Deaths Registration Act must be repealed in their entirety and be included in the single legislation dealing with citizenship, immigration and refugee protection. This will remove contradictions and loopholes in the paths towards citizenship as is now the case with the three pieces of legislation.

23.3 The criteria for granting any form citizenship must be strictly in accordance with the law.

23.4 A proper register should be kept for all persons granted citizenship by naturalization by the Minister. The register must be tabled every year in Parliament by the Minister.

Immigration

24. Before the Immigration Act 13 of 2002 was enacted, the applicable legislation was the Aliens Control Act and the Aliens Control Amendment Act .

Illegal foreigners

25 South Africa is today a great place to live in and many people in the world aspire to live, work or to be the citizens of South Africa. In the result, many foreign nationals come to South Africa and stay in the country illegally.

25. No one can account for all undocumented migrants.

26. The DHA has no idea as to how many illegal immigrants are in South Africa. However, Immigration Services deports between 15 000 - 20 000 illegal foreigners every year at a huge cost. This number is on the increase.

27. The establishment of the Border Management Authority ("BMA") should significantly reduce the risk of illegal foreigners entering the country illegally .

28. The Immigration Act introduced fundamental changes (albeit controversial) and a host of visas such as, temporary visa, study visa, business visa, critical skills visa, corporate visa, spousal visa , retired persons visa, relative visa, intra company visa and permanent residence.

Review of visas

29. There is a need to review the current visas under the Immigration Act. Visas such relative's visa, corporate visa, intra-company visa will be abolished. Additional limited-duration permanent residence visas linked to minimum investment will be introduced and e-visas (tourist) and remote work visas. The introduction of limited- duration permanent residence visa with minimum investment will add impetus to economic stimulus. The introduction of limited -duration permanent residence visas will curtail the current difficulties in which individuals, business and church organizations and others resort to fraudulent means to acquire permanent residence status. Some of the proposed changes are already being implemented as part of the Vulindlela Project's recommendations.

30. The maximum period to issue visas would be shortened. The new bodies to issue visas will have to strictly observe the new requirement. Transitional mechanisms will be built in in the new legislation to fast-track the resolution of current backlogs.

Policy framework: Proposals (Immigration)

31. The White paper proposes:

31.1 Border control must be coupled with immigration.
31.2 The Border Management Authority Act must be reviewed to align it with Immigration and Citizenship new policy framework.

31.3 The policy framework must provide for the establishment of the Advisory Board which comprise representatives of the Departments of Trade, Industry and Competition, Labour and Employment, Tourism, South African Police Service, South African Revenue Service, Education, International Relations & Cooperation, Defence & Military Veterans and Director- General of the DHA .

31.4 The Board must also comprise representatives of organised labour, including four individuals on the grounds of expertise in administration, regulatory matters or immigration law, control, adjudication and enforcement, appointed by the Minister.

31.5 The current Minister has published the new Critical Skills List in August 2022. The list has been trimmed down in respect of occupations/ professions. The Critical Skills List is necessary to attract foreign skills required for the development of South Africa.

31.6 The list was compiled in consultation with all the relevant stakeholders, including NEDLAC.

31.7 Policy and legislative interventions are required to tighten the procedures and strengthening the monitoring capacity by introducing integrated IT systems capable of flagging fraudulent activities in the issuing of visas, identity documents, marriage certificates and passports. This include giving wide statutory powers to the existing Anti- Corruption Unit within the DHA.

31.8 The new policy must provide that members of the Anti- Corruption should be seconded from the South African Police Service ("SAPS"). The rationale being that members of the SAPS enjoy wide statutory powers, including search and arrest without a warrant.

31.9 New legislation must be introduced to strengthen the powers of immigration officers and Inspectorate and make continuing training compulsory. The majority of members of the Inspectorate must have legal qualifications and policing experience.

31.10 The recent publication of the National Labour Migration Policy introducing quotas for employment of foreign nationals will go a long way in defusing simmering tensions between South African citizens and foreign nationals.

31.11 When the Immigration Act was enacted, provision was made for the establishment of Immigration Courts. However, the Immigration Act was amended in 2004 to remove the establishment of such courts.

Immigration Division and Immigration Appeal Division

31.12 New policy framework and legislative intervention is required to establish the Immigration Division whose members are duly qualified to deal with granting of various visas. The current system is unworkable as staff members are overworked. Appeals/ review are dealt with by the DG and the Minister. Given the responsibilities that we have, it is impossible for them to deal with the appeals/reviews.

31.13 Given the current challenges, there is merit in stablishing an independent body to deal with appeals/reviews, such as, Immigration and Refugee Board: Immigration Division, Refugee Protection Division and Immigration Appeal Division.

Canada

31.14 The Immigration and Refugee Protection Act, 2001 (Canada) makes provision for the Immigration and Refugee Board, consisting of the Refugee Protection Division. Refugee Appeal Division, Immigration Division and Immigration Appeal Division or Special Immigration Appeals Commission (as in the United Kingdom).

31.15 The Canadian equivalent of the RSDOs is the Refugee Protection Division ("RPD"). This is a statutory body charged with the responsibility of taking decisions on asylum applications. In order to avoid backlogs, its members are appointed on full-time basis in terms of the Canadian Public Service Act. In other words, the RPD performs functions that are assigned to the RSDOs in terms of the Refugees Act. The RPD conducts proper hearings with asylum seekers being afforded the right to legal representation. This will obviate the long-winded and tedious appeal process under the current legislative framework.

31.16 A party that is aggrieved by the decision of the RPD must appeal to the Refugee Appeal Division with majority members being appointed on full-time basis and 10% of whom must be members of the bar or attorney for at least a period of five years.

31.17 Furthermore, the Canadian legislation clearly makes a distinction between economic immigrants and refugees. The same approach is adopted in the White Paper.

United Kingdom

31.18 In the United Kingdom ("UK"), adjudicators (equivalent of RSDOs) must be members of the Bar or attorneys for a period of seven years. The strict qualifications requirements in Canada and UK are because asylum matters are by their nature complex and involve international refugee law.

Further Policy framework: Proposals (Refugee Protection)

31.19 The new policy framework and legislative measures must include the establishment of structures such as in Canada. The decision-making powers will be quick and virtual hearing can be introduced at the ports of entry as in Netherlands.

31.20 Consideration will be given and provided for in the new integrated legislation to appoint either serving judges or retired judges or Senior Counsel as chairpersons of the appeal bodies.

Different treatment of refugees

31.21 In instances of unlawful entry into the Republic, an additional requirement must be introduced that they must show good cause for their unlawful entry or presence.

31.22 The Minister should be empowered to declare an asylum claim made by an asylum seeker who has a connection to a first safe country invalid. In other words, the first safe country principle must be strictly applied. This will include a person who may apply to be recognized as a refugee in that State.

31.23 This policy framework would discourage asylum seekers who deliberately fail to apply for asylum at the first safe country which is a signatory to the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention. Furthermore, it would deter economic migrants who come to South Africa disguising as asylum seekers.

Exemptions and economic migrants

32. Given the challenges of economic migrants, the exemptions should be retained and the Minister must exercise such powers in exceptional cases.

33. AGRI SA in its comments on the White Paper agrees with the policy options but proposes that the special exemptions should be granted to the agricultural sector which has for years also relied on unskilled foreign labour. The DHA is ready and willing to enter into public-private partnership with organizations such AGRI SA to tackle the issue of economic migrants by agreeing to quotas as proposed in the Labour Migration Policy submitted by the Department of Labour and Employment and the DHA to NEDLAC. The provision for special exemptions will cater for economic migrants and reduce the number of economic migrants who come posing as asylum seekers and refugees. Furthermore, it will address the burning issue of employers resorting to hiring illegal migrants.

Informal Shops ("Spaza Shops")

34. The Spaza Shops owned by foreign nationals requires effective regulation. In a workshop held in October 2023 attended by Houses of Traditional Leaders, District and Metro Mayors, South African Local Government Association ("SALGA") and relevant government departments, firm resolutions were adopted to conduct an audit of all Spaza Shops in the country by municipalities. This is with a view to have all Spaza Shops registered and establish the immigration status of the owners. Furthermore, municipalities will introduce by-laws to regulate the location and other requirements such as, health and safety. Traditional leaders will play an important role in respect of informal shops located in communal land.

Conclusion

35. I take this opportunity to thank all the concerned citizens and staff of the DHA who worked tireless in developing the policy frameworks contained in the final White Paper. The constructive comments and criticisms played a significant role in shaping the final White Paper. An explanatory memorandum will accompany the distribution of the final White Paper to the public at large annexed hereto marked "B".

36. A complimentary and integrated bill (based on the final White Paper) will be introduced in Parliament without any further delay.

All media enquiries be directed to
Thabo Mokgola, (Spokesperson for the Minister of Home Affairs)
Cell: 060 962 4982

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