Green paper on proposed new policies aims to clamp down on ‘economic migrants’ seeking asylum to live and work in SA
Home Affairs Minister Malusi Gigaba’s long-promised clampdown on “economic migrants” is taking shape.
A proposed new migration regime for South Africa would see asylum seekers lose their right to work, trade and study in the country.
This is because people who do not qualify for refugee status use temporary asylum permits as “de facto work, business or study visas”.
Instead, they will in future be confined to processing centres near the border, where “their basic needs will be catered for” while they are kept from “integrating into communities”.
Most of them will probably not even be able to apply for asylum because of a proposed “third-country” rule that would exclude anyone who reaches South Africa via a country that is considered safe without first applying for asylum there.
These are some of the key proposals in a new green paper on international migration that was published in the Government Gazette last Friday.
The paper said that it was neither desirable nor possible to stop or slow down international migration.
The major hole in existing migration policy, based on a 1997 white paper, was that it was conspicuously silent on the need to manage historic flows of labour within the SA Development Community (SADC) in a way that would break with the colonial past, the paper said.
Instead, Gigaba is proposing a quota system for the so-called economic migrants – relatively unskilled workers and traders from the region.
Their new legal status would be severed from permanent residence rights, says the green paper.
Unlike poorer economic migrants, or refugees, immigrants with skills and substantial amounts of capital would be lured with greater access to permanent residency and citizenship, the paper proposed.
One innovation is to grant instant permanent residence status to any foreign student graduating from a South African university.
Long-term work visas for skilled workers and their families under one application are also proposed, as well as a “points system” to score potential immigrants.
MIGRANT LABOUR IN THE 21ST CENTURY
At least three new types of temporary visas are, however, proposed at the other end of the socioeconomic spectrum, including an SADC special work visa for unskilled workers.
Quotas will be installed and people working in South Africa will not qualify to progress to permanent residency on the basis of years spent in the country.
The number of people let in would be “partly a political decision”, but also based on labour market demand, the paper said.
An “SADC traders’ visa” is proposed for traders who cross the border frequently to buy and sell goods, while an “SADC small and medium-sized enterprises visa” will be issued for small business owners – possibly also subject to quotas because of “competitiveness concerns”.
Even critics of the government’s treatment of asylum seekers admit that many people apply opportunistically, even when they have no real case for refugee status.
“People choose to seek asylum because the immigration system is so hard to access,” said David Cote, head of the strategic litigation unit at Lawyers for Human Rights.
“It is probably a progressive step to have a temporary work permit. It might relieve the pressure on the asylum system. The system has been geared at encouraging highly skilled immigration,” he said.
According to Loren Landau, director of the African Centre for Migration and Society at Wits University, the overall gist of the green paper is “essentially looking to close that door”.
“The centres will primarily aim to stop them [asylum seekers] from getting work permits. It is very unpragmatic ... unless South Africa is prepared to control and deport people in a way that is not in line with human rights,” he said.
Landau is sceptical of the idea for temporary worker quotas, although he does admit that some form of new legal status is required for the region’s mobile workforce.
“We have not seen any serious attempt to look at what a regional labour market would entail,” he said.
“Those restrictions will just create an even more exploitable underclass of foreign workers.”
Mayihlome Tshwete, spokesperson for the department of home affairs, said that it would be premature to respond to comments on the paper.
“You will hear some people say it is too liberal and others say it is too restrictive,” he said.
“Supporters and naysayers will agree that this is ... the biggest consultation we have invited on migration.”
The intention is a complete overhaul of the migration system, he said.
After extensive consultation, a white paper will be produced, probably next year, said Tshwete.
The new quota-based regime could be accompanied by more mass amnesties for people who are already in South Africa, says the paper.
A special dispensation for Lesotho citizens to “regularise” their status is under way, following a similar process for Zimbabweans.
About 40 000 applications have been received from Lesotho citizens, while about 300 000 Zimbabwean migrants have been regularised.
There were other amnesties in the 1990s, including one for Mozambican mineworkers.
It is hard to know how many people would be affected by the proposals. Government records indicate that South Africa is the single largest recipient of asylum applications in the world, with 1 million applications in the system.
The figure probably includes a large amount of double counting, said Landau.
In May 2015, there were only 78 339 active asylum seeker permits and 96 971 active refugee permits, says the paper.
This represents a high churn. There were 70 010 applications for asylum in 2013 and 71 914 in 2014. In 2015, however, this dropped to 62 200, according to the UN High Commissioner for Refugees.
“Let us nevertheless say that hundreds of thousands of people rely on asylum-seeker status,” said Landau.
“Admittedly, many of them will never get refugee status and should not.”
Cote said some of the green paper’s proposals were based on misconceptions.
“One of these is that you can curtail abuse by detaining people,” he told City Press.
“Warehousing people in detention centres is not international best practice,” he said.
According to the green paper, “low-risk” asylum seekers would be allowed to leave the facilities under guardianship of organisations or families – but “only refugees and not asylum seekers will be allowed to integrate into communities”.
The “safe third-country rule” proposed in the green paper would put South Africa on “shaky legal ground” and probably draw the condemnation of the UN and some governments in the region, said Landau.
The rule would “exclude almost everyone, unless they came by plane or by ship”, said Landau.
According to Cote, the rule was contested in Europe and North America, and was found to be unlawful.
Even asylum seekers who do get fully fledged refugee status should no longer be automatically eligible for permanent residence or citizenship, says the paper.
Their situation is “inherently temporary”, it says.