Khadija Magardie
The new draft Bill on immigration could exacerbate the already high levels of xenophobia in South Africa.
The Bill lists “the prevention and deterrence of xenophobia, at both government and community level” as one of its primary functions. But this is contradicted in its approach towards what it classifies as illegal foreigners.
The Bill basically calls for the establishment of an Immigration Service – styled along the lines of the United States Immigration and Naturalisation Service – that would operate separately from home affairs but whose officials would be appointed by the Minister of Home Affairs. The service would encompass the establishment of courts and specialists who deal specifically with matters relation to immigration control.
Significantly, in the Bill there is a shift of focus from the state to the South African citizen as immigration enforcer.
It was the White Paper on International Migration that introduced the idea that immigration law enforcement should be shifted from border control to community level. The new Bill would effectively not only empower, but oblige a spectrum of civil society, from neighbours to hoteliers, to report on the activities of immigrants.
Various institutions would be obliged to work with the immigration service. The service would also be able to inspect schools, workplaces and residential areas to investigate and monitor immigrants.
For example, the draft Bill says that “any business offering overnight accommodation shall make a good faith effort to identify its customers as citizens or status holders, and shall report in prescribed form to the Service any failure to effect such identification”. Hoteliers who fail to report regularly would be presumed to be “harbouring illegal foreigners”.
Other sectors encouraged to take a tough line on illegal foreigners are employers and learning institutions. The Bill imposes a stiff penalty, ranging from fines to imprisonment, on any institution or individual found guilty of “aiding and abetting illegal foreigners”.
The Bill also empowers the Immigration Service to demand proof of citizenship, at any time. If the person is unable to do so, an officer is entitled to “take such person into custody without a warrant and if necessary detain him or her in a prescribed manner and place until such person’s prima facie status or citizenship is ascertained”.
What is more worrying is the idea that South Africans should be enlisted in the detection, apprehension and removal of “illegal aliens”. Critics say that given the existing high levels of xenophobia and intolerance towards foreigners, such legislation sends out a message for South Africans to take the law into their own hands.
In the migration journal, Crossings, editor Vincent Williams argues that such “witch-hunt” tactics could result in grave consequences.
Because so-called “illegal foreigners” would be sniffed out, often on the basis of assumptions around skin colour, language, accent, or dress, it is possible that South Africans could also be victimised.
Moreover, ordinary citizens who may suspect people of being in the country illegally might even regard “taking action” as their patriotic duty.