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South Africa: White Paper Set to Overhaul Migration System, Says Motsoaledi

Home Affairs Minister Dr Aaron Motsoaledi says the recently published White Paper On Citizenship, Immigration and Refugee Protection contains radical proposals that are aimed at overhauling the migration system in South Africa.

Cabinet approved the White Paper on Wednesday, 1 November 2023 for public comment. It was published in the Government Gazette No. 49661 on 10 November 2023, after what Motsoaledi described as a “painstaking exercise of drafting”.

The draft policy aims to provide a framework to guide the granting of residency and citizenship to foreign nationals, as well as the protection of refugees and asylum seekers in South Africa, cognisant of the Republic’s national security interests and in compliance with international agreements and protocols on migration that South Africa is party to.

“There have been consistent loud voices calling for effective policy measures and legislative interventions dealing with migration in South Africa.

“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 practice, these pieces of legislation are not in harmony with each other. Piecemeal amendments were made without any policy framework whatsoever,” Motsoaledi said at a briefing in Pretoria on Sunday.

Key proposals

Motsoaledi said one of the chief proposals in the White Paper is that the government of the Republic of South Africa must review and/or withdraw from the 1951 United Nations Refugees Convention (“1951 Convention”) and the 1967 Protocol relating to the Status of Refugees (“1967 Protocol”), with a view to accede to them with reservations like other countries.

“The refugee protection and immigration legislation must provide for reservations and exceptions, as contained in the 1951 Convention and the 1969 OAU [Organisation of African Unity — now AU] Convention, particularly in that South Africa does not have the resources to grant the socio-economic rights envisaged in the 1951 Convention,” the Minister said.

He explained that the current citizenship legislation has its roots in the 1949 Citizenship Act (“1949 Act”) and other relevant successive laws governing citizenship.

He said 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.

“The South African Citizenship Act provides for three main forms of citizenship, namely, citizenship by birth, citizenship by descent and citizenship by naturalisation,” Motsoaledi said.

The Minister said the Citizenship Act and Births and Deaths Registration Act must be repealed in their entirely 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. The criteria for granting any form of citizenship must be strictly in accordance with the law.

“A proper register should be kept for all persons granted citizenship by naturalisation by the Minister. The register must be tabled every year in Parliament by the Minister,” Motsoaledi said.

Immigration

The Minister said South Africa is a great place to live in and many people in the world aspire to live, work or to be citizens of South Africa.

“[As a] result, many foreign nationals come to South Africa and stay in the country illegally. No one can account for all undocumented migrants. The Department of Home Affairs 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.

“The establishment of the Border Management Authority (BMA) should significantly reduce the risk of foreigners entering the country illegally,” the Minister said.

Motsoaledi said the Border Management Authority Act must be reviewed to align it with Immigration and Citizenship new policy framework.

“The policy framework must provide for the establishment of the Advisory Board, which comprises 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 [Department of Home Affairs].

“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.

“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 includes giving wide statutory powers to the existing Anti-Corruption Unit within the DHA,” the Minister said.

Motsoaledi said the new policy must provide that members of the Anti-Corruption Unit 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,” the Minister said.

New legislation, Motsoaledi said, 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.

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