South Africa needs a constitutionally compliant immigration policy

COMMENT

South Africa’s immigration system ceased on March 18. Ministerial regulations, arguably unconstitutional and unlawful, published on March 26 in terms of the Disaster Management Act have categorised all foreigners who have visited “high risk countries” since March 15 prohibited, side-swiping provisions contained in our immigration legislation. But it was President Donald Trump’s promise to close the United States’s borders to immigration applications beyond the immediacy of the Covid-19 pandemic that was the trigger that created an overnight explosion of debate about xenophobia.

This lockdown hiatus should be a headbutt to our immigration policy-makers, to awake in them a wiser, more conciliatory approach to the four to five million foreigners living within our borders, documented and illegal, alike. Perhaps this forced respite, with nature calling the shots, will enable nationalistic trends in the domestic immigration debate to ameliorate in favour of a more constitutionally compliant system of immigration control. 

On April 8, Jews around the world, including me, celebrated the first night of the Passover Seder. Passover is the festival of the Jewish liberation, a celebration of freedom, as Human Rights Day is the commemoration of the Sharpeville massacre and its burning relevance to the destruction of apartheid, and its replacement with a vibrant constitutional democracy. This year’s was an introspective Passover at a strangely hermetic time. 

Regardless, the message of Passover is universal, resonating loudly in South Africa today, as it does elsewhere. Passover is in many fundamental respects an immigrant’s festival, containing the seeds of a policy of liberation and liberalisation, ethnic diversity, and tolerance and love for minorities and the marginalised. The Passover Seder involves recounting from the ancient Haggadah text the story of the Jewish nation’s exodus from slavery in the land of Egypt, to freedom. Jews are biblically commanded to relive this story every year, and to pass it onto successive generations so it will never be forgotten. 

The Haggadah recalls, in detail, the Israelites’ emigration from the land of Canaan to Egypt, as economic migrants from a famine. At first, the Israelites thrived and made significant contributions to Egypt’s society and culture, but when a new king arose over Egypt, laws and policies were enacted against them, and they were enslaved.

The resulting suspicion of Jews as foreigners in Egypt, and their consequent oppression, became a cornerstone of Jewish ethics: 

You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt.

Perhaps this simple, unadulterated, biblical formulation should be the moral underpinning of a South African code of conduct towards foreigners. 

The Jewish American Hebrew Immigrant Aid Society (HIAS) — founded in 1881 to assist Jews fleeing the anti-Semitic pogroms in Eastern Europe — has, since 1975, assisted more than 4.5-million non-Jews to escape persecution and resettlement across the globe. 

At the beginning of the Passover Seder, bitter herbs or vegetables (in remembrance of the bitterness of Jewish suffering) are dipped in salt water, symbolic of the tears the Israelites shed when they fled Egypt.

HIAS’s Haggadah supplement contains an expanded text demonstrating the Passover’s universal moral application:


“Centuries ago, only those who were free enjoyed the luxury of dipping their food to begin a meal. In celebration of our people’s freedom, tonight, we, too, start our meal by dipping green vegetables… As we dip, we recognise that, today, there are more than 65-million people still making these treacherous journeys away from persecution and violence in their homelands…”

Thirty-three centuries later, while Jews recall their exodus to freedom, too many South Africans have already forgotten their experiences during apartheid, which ended just 26 years ago. South Africa’s immigration policy is reflective of a country in the throes of a dangerous memory lapse. 

Over 550 incidents of xenophobic violence have been recorded since 1994, with thousands of foreigners displaced and hundreds murdered in the process. In its 2020 South African Report, Human Rights Watch refers to a total lack of accountability for xenophobic crimes, for which “virtually no one has been convicted… including the attacks in 2019, the Durban violence of April 2015 that displaced thousands of foreign nationals, and the 2008 attacks on foreigners, which resulted in the deaths of more than 60 people across the country.” 

One might argue that the residue of apartheid is a lingering suspicion of foreigners, and especially their most vulnerable iteration: refuge-seekers and economic migrants. Our leadership seems to have forgotten the moral lessons of apartheid, as they relate to foreigners in our midst. In its 2007 newsletter, the United Nations observed that, despite the liberation of South Africa from its apartheid past and the abrogation of racist laws, the victims of oppression and racial discrimination are minorities or non-citizens. 

On May 26 2014, when amendments to South Africa’s Immigration Act were promulgated, a number of significant restrictions were introduced, including the obligation of foreign spouses and minor children of South Africans to apply for their long-term visas at foreign South African missions, prohibiting them from doing so in South Africa. Two decades ago, writing for a unanimous Constitutional Court, former Justice Kate O’Regan ruled that any law which impairs the ability of spouses to cohabit violates their right to dignity, enshrined in Section 10 of the Constitution.

Challenging the lawfulness of the 2014 restriction was an arduous, expensive, and long-winded affair. My law firm’s endeavours first resulted in defeat in the Western Cape High Court, after which we prevailed on appeal to the Constitutional Court in June 2019, when the restrictive immigration regulations were declared invalid and unconstitutional — for the same reasons as O’Regan’s so long ago. 

While the right to human dignity — and the rights of children to parental care — are so clearly articulated in our Constitution’s Bill of Rights, why are they so flagrantly violated by our immigration policy-makers? 

Today, foreign parents who have assumed custodial or financial responsibility over their minor South African children have no immigration benefit, should they not be engaged in a spousal relationship with the other parent. There are innumerable foreign parents living in fear of deportation because their relationships with South African partners have terminated, and they are unable to acquire a lawful immigration status to live and work to support their children.

In 1994, Nelson Mandela created what became known as the Office on Child Rights, which afforded children the highest level of national priority, yet the focus on children’s rights in South Africa has since been effectively abandoned. In 2014, on the 25th anniversary of the United Nations Convention on the Rights of the Child (the first international convention ratified by South Africa after apartheid in 1995) the South African Human Rights Commission called on the government to urgently re-prioritise children’s rights. The Convention enshrines the rights of children to be registered immediately after birth, to a nationality, and to be cared for by his or her parents. 

Again, we have sought to challenge in the Western Cape High Court the constitutionality of the Immigration Act, to the extent that it fails to provide any visa category to foreign parents, violating the rights of children to parental care. A notice of opposition has been served by the Department of Home Affairs and, after the lockdown, this litigation will ensue.

The Births and Deaths Registration Act expressly prohibits the registration of a child’s birth, should a foreign parent’s valid visa or permit not be submitted with the birth registration application. South African-born children cannot have their births registered if one of their parents is without a valid immigration status, thwarting such a child’s right to an identity and a name. These regulations also exclude that child from the “inclusive moral citizenship” which retired Constitutional Court Justice Edwin Cameron referred to in his explication on Understanding Human Dignity — the same “inclusive moral citizenship” that gives human dignity its constitutional definition. 

The bureaucratic cabal responsible for formulating migration and civic services policy has distanced itself from the foundations of our constitutional order, and from the collective memory of living like strangers during apartheid. As former Chief Rabbi of England, Lord Jonathan Sacks, observed, “If you forget the story, you will lose your identity. There is such a thing as a national equivalent of Alzheimer’s. Who we are depends on what we remember, and a failure of collective memory poses a real and present danger to the future of liberty.”

The Passover is an international manifesto of remembrance. May this period of lockdown give us all the opportunity, and courage, to remember where we came from so that we may elevate our migration policy to one based on dignity, the liberalisation of our borders, respect for ethnic diversity, and the prevention of suffering of the most vulnerable who live amongst us. 

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

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Gary Eisenberg
Gary Eisenberg
Gary Eisenberg is the founding attorney at Eisenberg & Associates
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