VIEWPOINT | Are migrant and refugee rights under threat?  

The Department of Home Affairs (DHA) has gazetted the White Paper on Citizenship, Immigration and Refugee Protection: Towards a complete overhaul of the Migration System in South Africa (White Paper). Nabeelah Mia, Head: Penal Reform Programme at Lawyers for Human Rights, explains what impact this may have. 

What are the aims of the White Paper?  

The White Paper seeks to amend the immigration and citizenship framework, specifically the Citizenship Act 88 of 1995, Immigration Act 13 of 2002 and Refugees Act 130 of 1998 on the alleged basis that the reason for the dysfunctionality of the DHA is partly attributed to the fact that these pieces of legislation are not in harmony with one another.  

What changes do the White Paper introduce that differ from the current framework?  

With respect to refugee protection measures, the White Paper proposes South Africa’s review and/or withdrawal from the 1951 United Nations Convention relating to the Status of Refugees (1951 Convention) and the 1967 Protocol relating to the Status of Refugees (1967 Protocol) with the intention to re-accede with reservations and exceptions that seek to restrict the rights to work, healthcare and education for refugees and asylum seekers. 

In respect of citizenship rights, the White Paper proposes repealing the Citizenship Act and reviewing the pathways to citizenship by naturalisation, specifically section 4(3) of the Act, which enables children born in South Africa to refugee, migrant or stateless parents to access South African citizenship. Moreover, it proposes the repeal of the Birth and Deaths Registration Act 51 of 1992. 

With respect to the immigration framework, the White Paper proposes a review of the Border Management Authority Act 2 of 2020 to align it with the new immigration and citizenship policy framework. The new policy framework should include the establishment of a cross-governmental Department Advisory Board that includes representatives of the departments of Trade, Industry and Competition; Labour and Employment; Tourism; Education; International Relations and Cooperation; Defence; and Military Veterans; the Director-General of the DHA; South African Police Service; South African Revenue Service; and representatives of organised labour.  

Furthermore, it envisions the adoption of legislation giving effect to strengthened powers of immigration officers and inspectorate, the implementation of quotas for the employment of migrants and the establishment of immigration courts as contemplated by the first iteration of the Immigration Act. 

It has been argued that some of the provisions in the White Paper may undermine human rights. Please describe which provisions these are and what can be done about it?  

The provisions in question are those that: 

• Seek to restrict pathways to citizenship through the proposed amendments to the citizenship legal framework. These post crucial legal safeguards against statelessness for children born in South Africa to refugee, migrant or stateless parents. Imposing stricter criteria for citizenship will increase the risk of statelessness, particularly among vulnerable groups like unaccompanied/separated/orphaned/abandoned children.  
• Propose that South Africa withdraw from the 1951 Convention and 1967 Protocol, which would no longer bind South Africa to the international legal obligations outlined in these documents. Although the White Paper suggests that South Africa will re-sign these treaties with certain reservations and exceptions, this would have severe implications for the current rights afforded to refugees and asylum seekers, especially those rights covered by the provisions to which South Africa would seek to make reservations. 

Does the White Paper address the issue of skilled immigration? 

It is important to consider the White Paper’s perspective on what is termed ‘economic migrants’ holistically. The following key points must be noted: 

• The DHA welcomes the opportunity to enter into public-private partnerships with organisations such as AgriCulture South Africa and agrees to quotas as proposed in the Labour Migration Policy submitted by the Department of Labour and DHA to the National Economic Development and Labour Council. 
• An audit of all spaza shops will be conducted by municipalities to ensure spaza shops are registered and to establish the immigration status of owners. Municipalities will introduce by-laws around the location, and health and safety requirements for these businesses. 
• The Critical Skills List will be reviewed and certain professions/qualifications will be removed from the list. 
• There will be a review of the current visas provided under the Immigration Act and certain visa regimes such as the relatives, corporate and intra-company visas will be abolished. The following visas will be introduced: limited-duration permanent resident (linked to minimum investment), e-visas for tourists and remote working visas. 

What was the reaction of civil society to the White Paper? 

As Lawyers for Human Rights, while we welcome the review and harmonisation of the legal framework governing the citizenship, immigration and refugee framework, we call for the DHA to withdraw this draft and allow for more time for public consultations and a redraft of the paper with the assistance and leadership of the South African Law Reform Commission. We note that the new Minister of Home Affairs has requested a legal opinion on the constitutionality of the proposals set out in the White Paper and welcome this. 

Is there a role for CSI in citizenship, immigration and refugee issues and, if so, what do you recommend companies support?  

Yes. We recommend that business uses its positioning and relationships with the government regarding the proposed amendments that will negatively affect it and are contrary to human rights. We further recommend that business engages with the government to promote pathways to the regularisation of migrants in South Africa that benefit the country economically and socially, and continues to uphold South Africa’s stature as a beacon of human rights on the continent.