The unexpected release by home affairs of new draft immigrations regulations last week has come as a surprise to many. The document, titled Draft First Amendment of the Immigration Regulations, 2014, made under the Immigration Act, is clearly identified as a draft.
But the document also stated that the amendments it listed would come into effect on December 1. This raises the question of whether the document is indeed a draft, or whether its amendments were implemented on December 1. And if its amendments were implemented, will the changes be communicated effectively to all levels of home affairs?
For would-be tourists travelling with children, the new draft will come as good news, because it delivers on the promise made by the former home affairs minister, Malusi Gigaba, in September, to relax the visa regulations for travelling with children.
At the time, Gigaba stated: “We are simplifying the rules on travelling minors who are foreign nationals to minimise disruption to legitimate travellers without compromising the safety of minors and the rights of their parents. To this end, we will issue an international travel advisory before the end of October 2018, after consultation with the Immigration Advisory Board.
“The key changes will be that, rather than requiring all foreign national travelling minors to carry documentation proving parental consent for the travelling minor to travel, we will rather strongly recommend that travellers carry this documentation. Our immigration officials will only insist on documentation by exception — in high-risk situations — rather than for all travellers, in line with practice by several other countries.”
Although Gigaba undertook to issue this advisory by October, it is commendable that this amendment appears to have been passed ahead of the summer holiday season.
But stakeholders are still waiting with bated breath for the other significant changes Gigaba spoke about in September, and we are curious about why these haven’t been implemented yet — particularly because we are approaching the biggest and busiest holiday season.
Among others, Gigaba said South Africa was negotiating visa waiver agreements for passport holders with Algeria, Egypt, Morocco, Sao Tome & Principe, Tunisia, the Saharawi Arab Democratic Republic, Ghana, Saudi Arabia, the United Arab Emirates, Qatar, the State of Palestine, Iran, Lebanon, Bahrain, Oman, Kuwait, Belarus, Georgia and Cuba. It is also simplifying visa requirements for countries such as China and India.
Although these key issues are not mentioned in the latest draft amendments, a number of small and seemingly insignificant changes are made. This raises questions about why the department of home affairs, which has long cited a lack of resources as the reason for its inability to process appeals and other long outstanding applications, has spent time and effort drafting a document containing multiple insignificant changes — particularly when a new draft Bill is expected within a matter of months.
The new draft Bill on immigration is expected to be available for comment in March 2019, and a new critical skills list is intended to be implemented in April. With major changes possible in the new legislation, the time spent drafting the latest minor amendments could have been better spent finalising visa/permit applications that are long outstanding, so that the affected applicants could finally go home and visit their families.
Stakeholders such as De Saude Attorneys welcome moves towards more effective immigration policies, but we also hope that, in future, home affairs will refrain from surprising the nation with rushed regulations, which commence within a day or two of publication.
In a democracy, time for public comment should be allowed, to give all stakeholders an opportunity to contribute to the policies that shape their lives and the economy as a whole. Indeed, stakeholders such as myself would welcome an opportunity to contribute to immigration policy and help the department to overcome its resources constraints.
At the start of this year, I released an open letter to President Cyril Ramaphosa, in which I expressed the hope that his influence would bring much-needed change in national policies that have an impact to our country’s ability to serve its people and fast-track economic development.
The early signs are there that moves are being made in the right direction. But more must be done. Ahead of anticipated change in immigration policy, I close the year with another appeal to the president and the government: please consider the impact immigration legislation has on foreign direct investment and global skills transfer.
Stefanie de Saude Darbandi is a lawyer and director at De Saude Attorneys