Beware the new migrant legislation
Changes to new immigrant legislation could mean that many long-term residents are no longer eligible to remain in South Africa.
All indications are that the new law may be implemented in the next few months, but many provisions are vague and potentially ill-considered.
The new white paper on international migration, which appears to be close to adoption, could significantly change the landscape.
The department of home affairs has a history of making significant legislative changes with little or no notice. The existing legislation was implemented in 2014 with only one working day’s notice, with the result that even officials at home affairs did not fully understand the changes. Inconsistent interpretation of the law resulted in the wrongful rejection of many applications for residency or citizenship in South Africa.
The new white paper could enact legislation with little notice in a matter of months, and even greater inconsistency in enforcing its provisions is likely because of a lack of clarity in several areas.
The white paper states that the aim of the new policies is to “increase South Africa’s international competitiveness for critical skills and investment in such a manner that it contributes to the achievement of national development goals”.
The white paper proposes that the granting of citizenship to foreigners be considered as exceptional and require an executive decision of the minister and calls for a points-based system for permanent residence and citizenship.
But the white paper is dangerously vague about who will qualify for permanent residence and citizenship. For example, there are no indications of exactly how such a points system will work. And if the aim is to grant permanent residence and citizenship only on the basis of economic contribution to the country, what will this mean for children, pensioners and working-class citizens?
The white paper says that residence will no longer lead to citizenship and the number of years spent in the country will not qualify a person to apply for naturalisation. Indeed, it proposes replacing a permanent residence permit with a long-term residence visa, which should be renewed at intervals. It also proposes a review of refugee residence visas.
Clearly, the white paper aims to protect the border and the citizens of the country, but you can’t simply lock down a border. Foreign investment and skills are important for economic development, so policy has to achieve a balance between national security and economic development.
No one knows how the government intends to assess criteria such as an applicant’s contribution to the economy, so ideally the minister should hold discussions with stakeholders to elaborate on these issues.
The white paper does not appear to recognise how much of a deterrent it is to skilled foreigners to know that, no matter how long they have lived in South Africa, and no matter how much they have contributed, they cannot become permanent residents or citizens.
In addition to affecting economic development, these ill-defined changes could cause significant personal upheaval and chaos for families living in South Africa. What will happen to refugees who have lived and worked in South Africa for years, have their families here and have nothing to return to? What will happen to those who have retained foreign citizenship for decades?
My father, born in Portugal, has lived in South Africa for more than 40 years as a permanent resident. He worked for years as a specialist underwater welder, ran a mechanical engineering business employing South Africans, paid his taxes and raised his South African-born children here. Kicking foreigners like him out of South Africa hurts both South Africa and the foreigners. South Africa loses skilled, hard-working, law-abiding individuals it desperately needs; the foreigners lose the homes that they have built over many years or decades.
The minister should, instead, be opening the doors to citizenship to foreigners. Why aren’t we offering wealthy foreigners the opportunity to acquire citizenship in exchange for an investment or donation as is common in many other countries?
It is only by productive and dignified engagement that litigation will dissipate, and through proper partnerships with all stakeholders and the upskilling of home affairs officials, especially on the law, that foreigners and South Africans will be better served, without fear or favour or conflict.
I have no doubt that the president has spent countless hours putting together his “package of reforms” to kickstart our economy, but I urge him and our minister of home affairs to talk to the stakeholders on the ground, such as me, to discover the real barriers in the way of much-needed foreign investment and skills streaming into our country to catalyse economic growth and job creation.
With possible implementation looming and little word on how the white paper’s aims will be enforced, I believe that anyone intending to apply for permanent residence or citizenship should do so now. It’s best to err on the side of caution because it is not clear what the new legislation will mean for applicants in future.
Stefanie de Saude Darbandi is a lawyer and director at De Saude Attorneys