South Africans hoping for an immigration Bill to ease the recruitment of skilled foreign labour have suffered yet another setback with the passing of a law that parliamentarians themselves say is defective.
The long-delayed immigration Bill was finally approved this week — with an unprecedented request to Minister of Home Affairs Mangosuthu Buthelezi to table comprehensive amendments as soon as possible.
In the latest bizarre twist in the processing of the Bill, the African National Congress in the National Council of Provinces withdrew a radical proposal for skilled immigrant quotas that was approved by the lower house — only to restore it a day later.
The Department of Trade and Industry had warned the ANC parliamentarians that the quota proposal was unworkable. However, it was put back into the Bill when it was realised that an amendment would mean returning the legislation to the National Assembly and missing a Constitutional Court deadline for its enactment.
Organised business and elements within the ANC have criticised quota work permits — introduced only last week during the National Assembly home affairs committee vote — as an obstacle to the recruitment of skilled foreigners. It required the ministers of trade and industry and labour to advise the Department of Home Affairs on required skills.
The turnaround came when it became clear there was not enough time for President Thabo Mbeki to sign the Bill into law ahead of the June 2 Constitutional Court deadline.
The court had given Parliament until then to remedy unconstitutional sections of the current Aliens Control Act dealing with the issuing of work permits to foreigners married to South Africans and the extension of temporary residence permits.
Had the amendment been carried, the Bill would have to go back to the National Assembly next week, leaving the president less than two days to sign it into law, instead of the required minimum five working days.
This week’s developments followed a radical rewrite of the Bill by ANC MPs earlier this month, which led to high-level crisis talks between the ANC and the Inkatha Freedom Party, which Buthelezi leads.
The ANC appears to have been driven by a desire to put its stamp on a Bill drafted under an IFP minister. Buthelezi made known his deep misgivings about the Bill, which he considered withdrawing at one stage, during last Friday’s National Assembly debate.
The 11th-hour political wrangling over the quota clause illustrates the political machinations behind the new immigration legislation — in the making since a White Paper was published in 1996.
As the new immigration law still contains the work quotas, confusion remains over how these fit together with the individual work permits and corporate permits under which companies can hire a pre-determined number of skilled foreigners.
This leaves home affairs in the unenviable position of having to draft regulations on quotas while working on amendments to scrap them.
Questions also remain over how the law will be implemented when Mbeki gives his assent, expected by next Friday. Without regulations the law cannot be implemented and until regulations are passed, the old aliens control Act is likely to fill the legal vacuum.
Interim regulations may have to be passed to enable the home affairs department to continue issuing permits. Revised forms to comply with the new Act must be produced almost overnight, say senior officials.
Wednesday’s restoration of the quotas “in the interest of time” was supported by other political parties, except the IFP.
When the Bill was passed last Friday by the National Assembly, most thought the drama was over. But hours later the ANC started talking of amending the quota system.
When Minister of Trade and Industry Alec Erwin, who had been abroad, met the parliamentary committee chairpersons and the ANC chief whip on Monday, he told them the quota system could not be implemented.
Erwin’s spokesman Edwin Smith said the department could not at this stage provide a list of necessary skills. “Nobody has a list of what’s required. Skills demands in the economy change so fast; to quantify what’s needed is an impossible exercise.”
There is deep concern that the new immigration law is barely an improvement on the existing aliens control Act.
Work permit applications still require the home affairs department to exercise bureaucratic discretion by verifying that no South African can fill the job. The initial home affairs-drafted Bill sought to remove this administrative discretion.
Other elements of Buthelezi’s Bill to bite the dust are a progressive penalty for employers who hire illegal foreigners; the department’s restructuring and the envisaged levy employers would have paid for hiring foreign skilled workers.