Scalabrini Centre launches ‘Speaking in the Gap’

An exploratory project on bridging the personal and the political through creative advocacy work

This report reflects on the research process and findings of a short study designed to explore how the personal, lived experiences of marginalised communities can be creatively expressed with the aim of informing, shaping, and catalysing political and high-level advocacy work.

“The stories themselves were shared by participants in participatory research processes and developed in group sessions with the facilitators. Some have been documented through arts-based, visual methods, while others have found a home in the encounters and moments shared in the groups.”

This is a report with many authors, from the facilitators – Yusra Price, Jill Van Dugteren, Xoli Fuyani and Shingi West – to the Director of the Scalabrini Centre, Giulia Treves, and the Scalabrini staff, and to all the women and girls who participated in the creative processes and shared experiences and stories. The commitment, hard work and willingness to engage by all those involved made the writing of this report the easy part, and I am extremely grateful to everyone. As this report shows, there is no obvious or one way of thinking through creative advocacy or of sharing and engaging with the stories that need to be heard. There are also far more questions than there are answers. The hope, then, is that this is a starting point and that many more creative, vibrant, and meaningful engagements are to come.

Economic Migration in Africa

This brief explores South Africa’s standpoint in the context of economic migration policy across the Africa. We research how ‘free movement’ is threaded through the establishment and protocols of bodies like the African Union, or Southern African Development Community – and South Africa’s position on this.

South Africa’s economic migration was historically influenced by the “racist orientation of migration policy.”

Early 1900s: 

  • At the end of the 19th century, as the mining industry boomed in South Africa, black laborers came mainly from Malawi, Mozambique, Lesotho, Botswana, and eSwatini to work in the South African mines. Meanwhile, skilled labor was primarily recruited from European countries. The structure of migration to South Africa has often followed this “two-gate policy”: African cross-border labor migration and European immigration. In other words, a two-tier immigration pattern existed, effectively divided along lines of race and skill set.
  • The white government of the South African Union established a recruiting system for labor migration. 
  • In 1901, Witwatersrand Native Labor Association (WNLA) agents traveled to places throughout Southern Africa to recruit mineworkers. In 1912, the Native Recruiting Corporation (NRC) also began recruiting black indigenous people to work in mines.

 

1913: 

  • The government issued a series of migration laws in 1913. The laws stated that only male laborers could enter South Africa. They had no rights, could not bring their families, and could only stay for up to one year, after which they had to return to their country of origin. Black laborers could not obtain permanent status in South Africa. 

 

1960s:

  • Starting in 1961 and throughout the 1980s, the South African government implemented programs to address the growing scarcity of qualified white labor. The government introduced subsidies—which were used to pay for travel expenses, accommodations and settlement allowances—in order to promote the settlement of people from Europe, as well as white settlers from African nations that had recently achieved independence.
  • Particularly between 1959 and 1994, the South African government issued a series of acts that controlled the internal economic migration of black people. Black South Africans were sent to impoverished homelands and stripped of their South African citizenship. They were only able to enter “white South Africa” temporarily as migrant laborers. In order to control and regulate black people’s movement to and within “white South Africa,” the government strictly enforced the pass system.

 

1970s and 1980s

  • While the South African government continued to welcome white migrants, starting in the early seventies, black economic migration decreased. This decrease was due to stricter border enforcement policies and less demand for foreign laborers by domestic businesses. 

 

1990s:

  • A main goal of the Apartheid government’s immigration legislation was to economically exploit labor migrants from neighboring African nations. The Aliens Control Act of 1991 continued the “racist orientation of migration policy.” It reinforced the “two-gate policy” by welcoming white economic migrants to help protect the power of the ruling elite and only allowing black migrants into South Africa temporarily to work in mines.
  • The post-Apartheid government adopted a very restrictive approach to economic migration. These restrictions affected all foreigners (including Europeans), but mainly African migrants. The policies were adopted in large part because of xenophobic public sentiment. South Africans presumed their “superiority to the rest of the continent” and thought of Africa and Africans as a threat in terms of employment and crime. According to demographers at the United Nations, between 1990 and 2000, the stock of international migrants in South Africa actively fell. 

 

2002

  • The South African government signed comprehensive immigration reform into law in 2002. As a result, cross-border economic migration experienced a positive growth.  
  • The Immigration Act of 2002 established a new legislative framework for economic migration. Among other changes, it granted migrants rights and placed an important focus on the recruitment of skilled labor. 

 

2010-Present Day

  • 2014: In 2014, an amendment to the Immigration Act of 2002 made visa regulations more restrictive.
  • The number of cross-border migrants in South Africa has increased by over two million between 2000 and 2017.
  • According to estimates, South Africa will receive a net immigration of 1.02 million people between 2016 and 2021. Due to the economic attractiveness of Gauteng, most cross-border migrants are expected to settle there.
  • Demand-pull factors such as employment (domestic service, mining, construction), trade, and investment opportunities drive economic migration from countries such as Mozambique to South Africa. According to the 2016 Community Survey conducted by Statistics South Africa, 2.8% of South Africa’s population is foreign-born.

The Organisation of African Unity

The Pan-Africanist movement, which arose in the late 19th and early 20th centuries, played a major role in the ideological development of the OAU. Though there were different versions of Pan-Africanism, one of the central ideas of the movement was that all Africans have shared experiences of exploitation that unite them. Also, the movement held that Africa and its people could only achieve economic prosperity, freedom, and political power if the continent was politically united.  

The Pan-Africanist movement began in the United States among African-American intellectuals, and soon caught the attention of prominent intellectuals and heads of state on the African continent, such as Kwame Nkrumah of Ghana. A number of Pan-African Congresses were held to discuss how to further the interests of African people. At the fifth session, the Congress called for total independence of the African continent, the unification of Africa, democracy, and economic regeneration. Between 1958 and 1960, Nkrumah also held a series of conferences in Accra with the goal of building cultural and economic ties between African nations. However, not everyone agreed with the vision of a “United States of Africa,” which led to ideological divide.

Between May 22 and 25 in 1963, delegates from 32 African nations met in Ethiopia to establish the Organization for African Unity (OAU) by signing the OAU Charter. South Africa was not in attendance because, at the time, it was ruled by a white Afrikaner government whose main tenet ran counter to OAU philosophies. Ultimately, because of the ideological divide about how to approach African unification, the OAU resulted in a “watered-down compromise” between the ideological groups—a “diluted version” of the original idea of a “United States of Africa.” Because immediate full integration of African countries wasn’t possible, the OAU was created with the intention that it would incrementally proceed with unification until a Union of African States became possible.

The goals and objectives of the OAU that are specifically relevant to this brief:

  • Promote unity and solidarity of the African states
  • To coordinate and intensify African States’ cooperation and efforts to achieve a better life for the peoples of Africa
  • To co-ordinate and harmonize members’ political, diplomatic, economic, educational, cultural, health, welfare, scientific, technical and defense policies
  • The 1991 Abuja Treaty was the first framework of the OAU to include free movement of people and capital as key pillars.

South Africa became the 53rd and last State to join the OAU on June 6th, 1994, the same year that apartheid officially ended and 31 years after the OAU’s original creation.

History

In 1979, the Committee on the Review of the Charter was established. By this year, it had already become clear that the Charter had to be amended to make the OAU more effective at dealing with issues in a changing world. However, despite several meetings, the Charter Review Committee was not able to develop substantive amendments. Then on September 9, 1999, an Extraordinary Summit of the OAU was held in Sirte, Libya. The Summit called for the establishment of an African Union in conformity with the objectives of the OAU Charter and the provisions of the Abuja Treaty (the treaty that established the African Economic Community). In other words, one of the main goals behind forming the AU was to merge the political activities of the OAU with the economic and development issues outlined in the Abuja Treaty (the treaty that established the African Economic Community). So, on July 11, 2000, the Constitutive Act of the African Union was adopted. The AU was officially launched in July of 2002 in Durban, South Africa.

Goals and Objectives of the African Union that are specifically relevant to this brief:

  • The aims of the AU are found in the Constitutive Act of the African Union and the Protocol on Amendments to the Constitutive Act of the African Union. 
  • Achieve greater unity and solidarity between African countries and their people
  • Accelerate the political and socio-economic integration of the continent
  • Encourage international cooperation 
  • Promote peace, security, and stability on the continent
  • Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments
  • Establish the necessary conditions which enable the continent to play its rightful role in the global economy and in international negotiations
  • Promote sustainable development at the economic, social and cultural levels as well as the integration of African economies
  • Promote cooperation in all fields of human activity to raise the living standards of African peoples
  • Coordinate and harmonize the policies between the existing and future Regional Economic Communities for the gradual attainment of the objectives of the Union

Also note:

  • The “concept of continental free movement is central for the AU.” In fact, the concept of free movement of people frequently shows up in AU treaties and protocols. The idea is that a united and economically successful Africa is only possible when free movement of migrants is established.  

Because South Africa had joined the OAU in 1994, it was already a member of the AU when the AU was officially launched in 2002.

We have selected 9 African Union treaties or protocols that speak to free movement and economic migration in Africa. Click on an option below to read more about how it relates to migration!

Main Relevant Points

  • Treaty entered into force in 1994. South Africa signed in 1997, South African Parliament ratified treaty in 2000.
  • This Treaty establishes the African Economic Community – see below in this brief for more information on this.
  • The Abuja Treaty is an important legal framework for migration because it is the first to focus on the free movement of persons as a way to strengthen regional integration and development in Africa.
  • Chapter VI of Abuja Treaty calls on Member States to agree to adopt the “necessary measures, in order to achieve progressively the free movement of persons, and to ensure the enjoyment of the right of residence and…establishment by their nationals within the .”
  • In pursuance of the above goal, the Abuja Treaty states that Member States must create a Protocol on the Free Movement of Persons, Right of Residence and Right of Establishment (this Protocol is described later in the brief).

Principles

  • Inter-State cooperation, harmonization of policies and integration of programs
  • Promotion of harmonious development of economic activities among member States
  • Peaceful settlement of disputes among member States as a pre-requisite for economic development
  • Recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights
  • Accountability, economic justice and popular participation in development

Implementation

  • In order for the provisions of the Abuja Treaty to be binding, representatives of States must sign and ratify the treaty and the protocols thereto in accordance with their own constitutional procedures, as South Africa has done.
  • The Economic and Social Council of the AEC is tasked with monitoring the progress made in the establishment of the AEC.

Main Points of MPFA

  • The AU Migration Policy Framework for Africa (MPFA) was adopted in 2006 by the Executive Council of the AU.
  • Recently, in 2018, the AU updated the MPFA with the Migration Policy Framework for Africa (2018-30) and its Plan of Action.
  • The Plan of Action lists activities that the AU Commission will carry out to facilitate the management of migration in Africa.
  • The purpose of the MPFA 2018-2030 is to provide comprehensive policy guidelines to AU Member States and Regional Economic Communities (RECs) as they promote migration and development, as well as address migration challenges in Africa.
  • The MPFA 2018-2030 emphasizes that nations can enjoy the benefits of migration when it is managed effectively.

The MPFA 2018-2030 provides guidelines in the following thematic areas:

  • Migration Governance
  • Comply with international standards and law and secure migrants’ rights
  • Employ migration governance to aid the socioeconomic well-being of migrants and society
  • Labor Migration and Education
  • MPFA calls for the establishment of regular, transparent, and comprehensive labor migration policies at national and regional levels
  • Regional cooperation and harmonization of labor migration policies
  • Recommends the creation of accountable labor recruitment and admission systems
  • Recommends promotion of standardized bilateral labor agreements to ensure protection of migrant workers
  • Integrate migrants into labor market and education and training sector
  • Recommends policies for countering brain drain
  • Diaspora Engagement
  • Border Governance: “The trend towards securitization of migration and borders should not engender the closing of borders and hamper integration efforts in Africa”
  • Irregular Migration
  • Forced Displacement
  • Internal Migration
  • Migration and Trade
  • The movement of people for trade (particularly short-term migration) is increasing in relevance
  • Other Cross-Cutting issues
  • Migration and Development
  • Migration Data and Research
  • Human Rights of Migrants
  • Migration, Poverty and Conflict
  • Inter-State and Inter-Regional Cooperation

Principles

Better migration governance (overarching objective of MPFA)

The facilitation of safe, orderly and dignified migration

Implementation

  • The MPFA is not legally binding.
  • AU Member States, including South Africa, “agreed on” the MPFA. By doing so, States demonstrated that they agree in principle with the document’s guidelines. However, they are not required to implement MPFA guidelines.
  • In general, there is a lack of knowledge among AU member states, including South Africa, on the MPFA. Only Ghana, Ethiopia, and Nigeria have used the framework to guide their national migration policy development.
  • The MPFA does not provide resource mobilization mechanisms for implementation or monitoring and evaluation of recommended actions.

Main Points
  • The African Common Position is one of the main policy documents of the AU related to migration and was adopted by the Executive Council in July 2006.
  • This policy document describes the “agreed position” of the AU member States (including South Africa) on 11 priority policies related to migration. It also presents recommendations for action at the national, continental, and international levels.

Main Relevant Agreements

  • Migration and Development: Migration can be an effective tool for development.
  • Labor migration: Labor migration policies that are regular, transparent and comprehensive can lead to benefits for origin and destination states. For countries of origin: remittances, skills, and technology transfers can assist with development objectives. For countries of destination: labor migration can satisfy labor market needs. Regional Economic Communities (RECs) are crucial for facilitating cooperation in the area of labor mobility at the regional level.
  • Migration and Peace, Security and Stability: Large and unregulated migrant flows can impact stability, security and conflict prevention.
  • Migration and Human Rights: A fundamental component of balanced migration management systems is the effective protection of economic, social and cultural rights of migrants (including right to development).
  • Regional Initiatives: Need to develop common regional policies within RECs. Need for more bilateral and multilateral efforts in labor migration cooperation. These efforts can ensure regular movements of laborers. Reduce recourse to illegal and irregular movements.

The ‘recommendations for action’ are as follows:

  • At national level:
  • Adopt a policy on migration.
  • Collect all relevant information on the extent of the migration problem.
  • Improve conditions for youth employment.
  • Establish a central body to manage migration. 
  • At continental level:
  • Encourage conclusion of cooperation agreements by African States to manage migrations by developing bilateral and regional legal instruments.
  • Improve management of migration flows by finding balance between effective security for legal immigrants and freedom of the legal movement of persons.
  • Explore the possibility of coordinating research on migration and development by existing institutions with the goal of providing current and reliable information to States and organizations.
  • At international level:
  • The easing of the movement of persons through more flexible visa procedures in order to reduce illegal and irregular migration.
  • Ratification and implementation of international instruments such as the UN Convention on the Protection of the Rights of Migrant Workers and their Family Members (1990) and all other relevant instruments.
  • Encourage the movement of skilled African labor between host countries and countries of origin.
  • Pay attention to: relaxing entry requirements for service providers, ensuring non-discriminatory treatment in the terms and conditions of service, elimination of the economic needs tests in recruitment.
  • Elaborate a framework for social and economic offsets from host countries to mitigate effects of large scale departures of highly skilled African professionals in critical sectors.

 

Principles

  • Objective: To develop a comprehensive and balanced approach to migration given the increase in migratory flows

 

Implementation

  • As mentioned above, the AU Executive Council adopted the African Common Position on Migration and Development. The African Common Position describes the position of South Africa given that SA is an AU member State. However, the policy document is not binding.
  • Note: The African Common Position on Migration and Development does not have to be signed or ratified. In other words, there is no provision for signing or ratification by Member States.
  • The Pan African Forum on Migration assesses the status of implementation of AU policy and legal frameworks, including the African Common Position on Migration and Development

Main Points

  • Adopted June 2014.
  • South Africa has not signed or ratified this Convention.
  • The Convention establishes a legal framework for member States to develop and implement cross-border cooperation initiatives. 
  • Based on coordinated activities between neighboring States, the Niamey Convention should facilitate the development of borderlands and ease free movement of persons and goods.
  • Ambassador Aguibou Diarrah stated that“The relations between states and between cross-border communities can have an impact on curbing illegal migration.” And, “Working together to pool resources and in border activities can help to keep young people – the candidates for migration – from migrating.

Principles

  • To promote cross-border cooperation, at local, sub –regional and regional levels.
  • To facilitate the delimitation, demarcation and reaffirmation of interstate borders, in conformity with mechanisms agreed upon by the parties concerned.
  • To facilitate the peaceful resolution of border disputes.
  • To transform border areas into catalysts for growth, socio-economic and political integration of the continent. Border regions are often less economically developed. The Convention allows for economic growth at the border through agreements and employment.
  • Promote peace and stability through the prevention of conflicts, the integration of the continent and the deepening of its unity.

Implementation

  • Once States sign and ratify, they are “encouraged” to harmonize their domestic law with the Convention.
  • State Parties also “commit” to applying the provisions of the Convention and “commit” to submitting a report on the measures taken for implementation every two years. Because South Africa has not signed or ratified the Convention, it does not do any of this.

Main Points

  • Adopted in 2015.
  • The AU Commission- International Labour Organization-International Organization for Migration- Economic Commission for Africa Joint Programme on Labour Migration Governance for Development and Integration (JLMP) is a long-term program between those 4 organizations and the UN Development Programme.
  • It is a comprehensive program on labor migration governance for the African continent.
  • Key long-term expectations: Extend decent work and social protection to migrant workers and their families, strengthen regional integration (through Regional Economic Communities) and inclusive development, enable better social and economic integration of migrants and sustainable labor market systems.
  • The program has two components: Component 1: Labor Migration Governance (increased ratification and domestication of international standards, implementation of free circulation regimes in RECs  and expanded engagement of labor institutions in labor migration governance). This means create focal departments in labor institutions on labor migration.Provide training and capacity building to labor institutions. Tripartite Policy Dialogue and coordination at national, REC and Continental level.
  • Component 2: Operational Implementation of Law and Policy. Thie means: decent work for migrants with effective application of labor standards, extension of Social Security coverage to migrants, resolution of skills shortages and increased recognition of qualifications, obtaining relevant and comparable labor migration and labor market data.

Principles

  • Overall objective: Strengthen the effective governance and regulation of labor migration and mobility in Africa, under the rule of law and with the involvement of key stakeholders across government, private sector employers, migrants, international organizations, and NGOs.

Implementation

  • The Joint Labour Migration Programme is not binding.
  • In order to be able to realistically execute the Joint Labour Migration Programme, a Three-Year Project (JLMP Priority) was launched in 2018.
  • There are committees tasked with follow up of the implementation of the program. Programme Steering Committee  meets every three months, the Programme Technical Committee meets twice a year, responsible for monitoring and implementation of JLMP Priority activities and the AUC Programme Support Unit manages the day-to-day implementation of Programme by different agencies including IOM, ILO, and AUC

Main Points

  • Adopted by AU Summit in June 2015.
  • Main Relevant Commitments: Speed up implementation of continent-wide visa free regimes. Offer all Africans the same opportunities accorded to the citizens of countries within our respective Regional Economic Communities (RECs). Expedite the operationalization of the African Passport that would, as a start, facilitate free movement of persons. Establish a harmonized mechanism to ensure that higher education in Africa is compatible and comparable and enable recognition of credentials that will facilitate transferability of knowledge, skills and expertise.
  • The Declaration called on the AU Commission to organize a retreat of the Executive Council on the issue of mobility and free movement of people in Africa
  • The Declaration also called for the development of a Protocol on Free Movement of Persons.

Principles

  • The aim is to accelerate mobility and integration on the African continent

Implementation

  • The Declaration on Migration is not binding. There is also no process for signing or ratifying the document. 
  • The Declaration states the following: “We the Heads of State and Government of the African Union …hereby individually and collectively…commit to undertake the following actions – ”Despite this commitment, South Africa has not made significant progress with respect to the Main Points of this Declaration. For example, instead of helping to speed up implementation of continent-wide visa free regimes, South Africa has called for several “preconditions” before the abolition of visas can occur, thereby slowing down the process. 
  • The Executive Council retreat called for in the Declaration on Migration took place in January of 2016. 
  • The Executive Council urged member States to adopt the “process outlined towards the adoption of a Protocol…on Free Movement of People” by January 2018 (the Protocol was adopted by the Assembly on January 29, 2018).
  • South Africa has not signed or ratified this Protocol.

  • Officially called: Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment (AU Free Movement Protocol)
  • South Africa has not signed or ratified the AU Free Movement Protocol.
  • This Protocol and the Implementation Roadmap are described in depth in question 6 of this brief.

Main Points

  • Adopted January 2018
  • CAP has 6 thematic areas: Addressing drivers to migration. Addressing human rights of all migrants including social inclusion. Smuggling of migrants. International cooperation and governance in migration. Irregular migration and regular pathways. Contributions of migrants and diasporas
  • What does the CAP say specifically about economic migration? The CAP states that labor migration can increase irregular migration and raise risks or management challengesIt also states that when labor migration is well-governed it can bring many benefits such as the balance of labor supply and demand, help develop and transfer skills, contribute to social protection systems, foster business innovation, and enrich communities both culturally and socially.
  • The CAP calls for: Supporting the improvement of national institutions that deal with labor migration to enable them to form sound national and regional labor related policyAbolishing the holding of travel documents as a prerequisite to conclude labor contracts. Introducing random field visits by officials of sending countries to monitor observance of labor contract rulesCreating a platform for encouraging balanced inter and intra-regional dialogue in order to ensure that migration systems and recruitment corridors are fair and respectful of labor rightsInvesting in data collection on labor migration to further understand the implications of migration for labor markets, sustainable development, and protection of migrant workersDeveloping and ensuring that migrants have access to timely and affordable complaints mechanismsClose cooperation between origin and host countries to ensure matching of skills and labor market needs.
  • The CAP also notes concern that the rhetoric surrounding irregular migration has focused mainly on security and border control considerations instead of on demonstrating how migration can relate to development strategies.

Principles

  • The adoption of the CAP is guided by the fact that human mobility and free movement of all persons within the continent constitute one of the pillars of an integrated Africa.

Implementation

  • The CAP is non-binding. However, it is important because cooperative frameworks like this one can lead to further bilateral and multilateral agreements.

Agenda 2063 is described in depth in Question 7 of this brief.

Even before the OAU was established, African leaders realised that economic cooperation between African nations was key to the development of the continent. In June of 1991, 34 OAU leaders met in Nigeria to sign the Abuja Treaty for the establishment of an African Economic Community (AEC) by 2025.  

The Abuja Treaty officially came into force in 1994. The treaty established the AEC to achieve economic integration on the African continent. The AEC is essentially an economic and monetary union that would cover the entirety of Africa.

South Africa signed the Abuja Treaty on October 10, 1997 and it was ratified by the South African Parliament on November 3, 2000.

Main Points of the Abuja Treaty

The Abuja Treaty strives to create an African Economic Community through the progressive integration of the activities of existing and future regional economic communities (RECs). In other words, the idea is to merge RECs together over a maximum period of 34 years to form the AEC.

There are currently eight RECs, which include:

  • The Arab Maghreb Union
  • The Economic Community of West African States
  • The East African Community
  • The Intergovernmental Authority on Development
  • The Southern African Development Community (South Africa belongs to this REC)
  • The Common Market for Eastern and Southern Africa
  • The Economic Community of Central African States
  • The Community of Sahel-Saharan States

 

According to the Abuja Treaty, the AEC is to be created through six stages of evolution.

Stage 1:

  • Strengthening existing RECs and creating new ones where they do not exist (no more than 5 years)

 

Stage 2

  • Strengthening sectoral integration, especially in areas such as trade, finance, transport, communications, and industry
  • Coordination and harmonization of activities of RECs
  • Up to 8 years

 

Stage 3:

  • Establishment of a Free Trade Area and Customs Union at level of each REC (up to 10 years)

Stage 4:

  • Coordination and harmonization of tariff and non-tariff systems among RECs with goal of establishing Customs Union at continental level (up to 2 years). 

 

Stage 5

Establishment of African Common Market through:

  • Adoption of common policies
  • Application of the principle of free movement of persons 
  • Application of provisions regarding rights of residence and establishment
  • Up to 4 years

 

Stage 6:

  • Strengthening of African Common Market by including the free movement of people and goods
  • Integration of economic, political, social, cultural sectors; establishment of single domestic market and Pan-African Economic and Monetary Union
  • Establishment of African Central Bank and single African currency
  • Creating and electing Pan-African Parliament
  • Up to 5 years

Another main point of the Abuja Treaty is that its preamble recognises migrants as an “integral part of the national human resources,” regardless of their country of residence.

 

Objectives of the AEC

  • To promote economic, social and cultural development and the integration of African economies in order to increase economic self-reliance and promote an endogenous and self-sustained development
  • To establish, on a continental scale, a framework for the development, mobilization and utilization of the human and material resources of Africa
  • To promote cooperation in all fields in order to raise the standard of living of Africans 
  • To coordinate and harmonize policies among RECs to foster the gradual establishment of the Community

 

Unfortunately, the progress made thus far with regards to the Abuja Treaty and the AEC is not where it should be. The African continent is moving too slowly towards economic integration. According to Dr. Olu Fasan, a Visiting Fellow and member of the International Trade Policy Unit at the London School of Economics, there is little integration within many RECs and “hardly any harmonisation between them.”

The African Union Free Movement Protocol* makes some important points.

Main Agreements and Points of Protocol Related to Economic Migration

The Free Movement Protocol has been signed by 32 AU member States and ratified by 4 (Mali, Niger, Rwanda, São Tomé & Principe). Eleven more ratifications are needed for the protocol to enter into force. South Africa has not signed or ratified the Free Movement Protocol. 

Also, the Protocol forms part of an effort to form a single continental market for people, goods, and services in Africa, similar to what exists in the EU. 

Objective

To facilitate the implementation of the Treaty Establishing the African Economic Community (AEC) by providing for the progressive implementation of free movement of persons, right of residence and right of establishment in Africa.

Article 5: Progressive Realization 

Three phases of implementation:

  • Phase 1: States Parties shall implement right of entry and remove visa requirements
  • Phase 2: States Parties shall implement right of residence
  • Phase 3: States Parties shall implement right of establishment

Article 14: Free Movement of Workers

  • Member State nationals have the right to seek/accept employment without discrimination in any member State in accordance with the laws/policies of the host State.
  • Member State nationals who accept employment in another member State can be accompanied by spouse and dependents. 

Article 15: Permits or Passes

  • Host member States shall issue residence and work permits to nationals of other member States who are seeking to reside or work in the host State.
  • Permits shall be issued in accordance with the immigration procedures of the host member State
  • Nationals of any member State have the right to appeal against a decision denying them a permit

Article 18: Mutual Recognition of Qualifications 

  • States Parties shall mutually recognize academic, professional, and technical qualifications of their nationals.
  • States Parties shall establish a continental qualifications framework to encourage and promote free movement of persons.

Article 19: Portability of Social Security Benefits 

  • States Parties shall facilitate the portability of social security benefits to nationals of other member States who are residing or established in their member State through bilateral, regional or continental arrangements.

Article 23: Remittances 

  • States Parties shall facilitate the transfer of earnings and savings of nationals of other member States (through bilateral, regional, continental or international agreements)

Article 25: Cooperation Between Member States 

  • States Parties shall coordinate their border management systems
  • States Parties shall record, document, and present upon request all aggregated migration data at the ports/points of entry or exit from their territory.
  • States Parties shall, through bilateral or regional arrangements, cooperate by exchanging information related to free movement of persons and the implementation of this Protocol.

Article 26: Coordination and Harmonization 

  • Guided by the Implementation Roadmap, States Parties shall harmonize and coordinate laws and policies (related to free movement of persons) of the regional economic communities, with the laws and policies of the African Union.
  • States Parties shall harmonize their national policies with this Protocol and use, as appropriate, the Implementation Roadmap.

Implementation Roadmap

The Roadmap is essentially a detailed chart that outlines the (1) main activities, (2) role and responsibilities, and (3) indicative dates for implementing specific provisions of the Free Movement Protocol.

The Roadmap is divided into three phases:

  • Phase One: Right of Entry and Abolition of Visa Requirements
  • Phase Two: Right of Residence
  • Phase Three: Right of Establishment

South Africa’s Official Reaction to the AU Free Movement Protocol

South Africa has yet to sign or ratify the AU Free Movement Protocol. According to Liesl Louw-Vaudran, a senior researcher with the Institute for Security Studies, South Africa is “far from ready” to implement the Protocol, especially because it is currently dealing with issues of xenophobia and migration.

Quotes from South African Department of Home Affairs

  • “South Africa supports the majority of the provisions of the AU Draft Protocol as they balance the objective of facilitating the free movement of persons in Africa and securing policy space for AU Member States to determine how best to implement the Protocol taking into account national circumstances. However, there are a number of provisions in the AU Draft Protocol which present a challenge for…South Africa.”
  • South Africa proposes the “inclusion of…preconditions in phase one of the Implementation Plan dealing with the ‘right of entry and the abolition of visa requirements’ so that Member States facilitate a smooth process for the abolition of visas.”
  • “The delegation of South Africa in AU Meetings has consistently argued…that it is imperative to enhance civil registration, establish integrated border management systems, enter into bilateral return agreements and strengthen law enforcement at national level before the right of entry and abolition of visas could be implemented.”
  • “South Africa’s further concerns relate to some of the provisions of the AU Draft Protocol as they are contrary to the established international and AU practice on treaty making, as well as the Constitution of the Republic of South Africa.”
  • “The Protocol provides for its entry into force upon adoption by the AU’s Assembly contrary to Section 231(2) of the Constitution of the Republic of South Africa which provides that ‘An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces…’”
  • “Some provisions of this Draft Protocol oblige Member States to harmonise their national laws, policies and systems with the Draft Protocol… will require approval of both the National Assembly and National Council of Provinces to be carried out.”

*The full name of the Free Movement Protocol is the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment.

The African Union Agenda 2063 is a strategic framework for the transformation of Africa into a global powerhouse by 2063. It is the manifestation of key Pan-Africanism ideals in that it envisions a United Africa–a democratic union. The Agenda prioritizes inclusive social and economic development, continental and regional integration, and democratic governance, peace and security. In sum, Agenda 2063 names Africa’s Aspirations for the Future, identifies important Flagship Programmes, and lists key activities that need to take place in a series of 10 Year Implementation Plans

Economic Migration in the African Union Agenda 2063 

The AU Agenda 2063 outlines free movement of people as a central goal for Africa. The free movement of people is seen as beneficial because it is expected to boost intra-Africa trade; facilitate labor mobility, intra-African knowledge and skills transfer; promote pan-African identity; improve trans-border infrastructure and shared development; and promote the rule of law and human rights.

Agenda 2063 called for abolishing “all visa requirements” for all African citizens in all African nations by 2018, but this has yet to occur. The Agenda also calls for Member States to issue a common African Passport by 2025.  It appears that, when Agenda 2063 refers to a visa-free zone, it ultimately envisions the ability of African nationals to reside and work in other African countries without visas. 

In pursuance of these goals, one of the Flagship Projects of Agenda 2063 is “The African Passport and Free Movement of People” initiative. This project seeks to advance the idea of a visa-free Africa by removing “restrictions on African’s ability to travel, work and live within their own continent.” The project strives to accomplish this by, as its title suggests, pushing forth the aforementioned African Passport.

Other Commitments Regarding Economic Migration in Agenda 2063:

  • Develop/implement policies that can enhance free movement of workers
  • Implement AU frameworks on Labour Migration Governance 
  • Initiate policies that would lead to a “better and more responsible” labor migration flow
  • Domesticate all ILO Conventions on Labour Migration as appropriate for each Member State
  • Review all labour bilateral agreements

The SADC is a Regional Economic Community. It was originally known as the Southern African Development Coordination Conference (SADCC), which was formed on April 1, 1980. The SADC was a loose alliance of nine States in Southern Africa and its main goal was to organize development projects that would reduce economic dependence on apartheid South Africa. Then on August 17, 1992, the SADCC became the Southern African Development Community (SADC). South Africa joined the SADC in 1994—the year that apartheid officially ended.

Main Aims and Goals of SADC

  • Achieve development, economic growth, enhance the standard and quality of life of Southern Africans and support the socially disadvantaged through Regional Integration
  • Evolve common political values, systems and institutions
  • Promote and defend peace and security 
  • Promote self-sustaining development on the basis of collective self-reliance, and the inter-dependence of Member States
  • Promote and maximize productive employment and utilization of resources of the region
  • Strengthen and consolidate the long-standing historical, social and cultural affinities and links among the people of the Region

Another main objective of the SADC Treaty is to promote policies that aim to eliminate obstacles to the free movement of persons in the region.

A draft Protocol on the Free Movement of Persons within SADC was introduced in 1996, but then replaced by a more restrictive Protocol on the Facilitation of Movement of Persons in 1997. 

  • The Protocol was made more restrictive because of income disparities between member States, which led to imbalances in migration flows. The 1997 Protocol was then revised in 2005. The new Protocol allows visa-free entry for citizens from other member States for no more than 90 days and as long as entry is for a “lawful purpose.” However, the Protocol is not operational because not all member States have ratified it.
  • Only Botswana, Mozambique, South Africa and eSwatini have signed and ratified the Protocol.
  • SADC is the only African regional organization that has failed to fully support, ratify and implement a policy framework for free movement of persons.
  • There exists a large tension between “free movement” and “security threat” discourse on migration in the region
  • Even though the Protocol isn’t operational, it makes provision for member States to make bilateral agreements for visa exemptions. Most States have exempted one another from visa requirements. 
  • In the SADC, many member States regulate economic migration through the use of bilateral labor agreements. South Africa, for example, has bilateral labor agreements with a number of member States.
  • The SADC also adopted the Action Plan on Labour Migration for 2013-2015 (renewed until 2019) and the 2014 SADC Labour Migration Policy Framework and the Protocol on Employment and Labour, which promotes the protection of migrant workers. However, these documents are not binding.
  • Recently, the SADC Labour Migration Action Plan (2020-2025) was approved. It is based on the idea that well managed labor migration is mutually beneficial and can facilitate greater development and economic stability for all SADC countries.

Important prediction:

According to experts at the Southern African Migration Project, “If economic parity is a prerequisite for free movement, it is clear that free movement is unlikely to be a feature of Southern Africa for some time to come.”

Power in Terms of Binding Nature/Political Power

The Summit of Heads of State or Government of the SADC is one of the bodies in charge of ensuring implementation of SADC protocols. However, even when the Summit agrees on an issue, there is “little space” to allow for implementation. For example, when the Summit agrees on the need for a well-resourced and funded Secretariat, it cannot simply make it happen. This is so because member States are supposed to fund the operational budget, but they do not provide enough.

Also, member States and their leaders are considered the pillars for implementation of the SADC agenda. However, there are several discrepancies in States’ commitment to implementation. For example, not all States agree to ratify SADC Protocols. The problem with this is that protocols must be ratified by a two-thirds majority before they can enter into force.

Even protocols that are ratified by a two-thirds majority and enter into force face implementation issues at the national level. SADC agreements don’t have a binding obligation to translate or integrate regional decisions into national law. As such, when member States don’t comply with their regional obligations, they face no consequences.

As the Institute for Security Studies asserts, “On paper, the prospects for freedom of movement are there. In practice, more needs to be done.”

Overall, South Africa’s viewpoint regarding economic migration through the SADC has been restrictive. South Africa is reluctant to advance the idea of regionalizing the governance of migration by creating a regional migration policy framework for the SADC bloc. This reluctance is largely driven by anti-immigrant rhetoric and South Africa’s focus on security when dealing with migration. Domestically, South Africa has adopted a “self-risks based” approach that strives to keep “risks” outside of the country’s borders. For example, it implemented a “detain and deport” domestic policy to remove undocumented migrants considered “undesirable.” However, this policy is largely inefficient, costly, and fails to deter undocumented migration.

Regionally, South Africa has historically gotten in the way of improving the management of economic migration within the SADC. For instance, in 1995, the first Draft Protocol on the Free Movement of Persons was proposed. This protocol sought to allow citizens of SADC countries to enter other SADC nations freely, establish themselves, and work. However, South Africa (along with Namibia and Botswana) strongly opposed this proposal. Ultimately, a watered-down version of the protocol was introduced and adopted by the SADC in 2005. This 2005 protocol, known as the Draft Protocol on the Facilitation of Movement of Persons, considers migration management a national competency and under it, states are responsible for individually and collectively handling migration. Unfortunately, the protocol has not yet entered into force because only four SADC member states have ratified it, including South Africa. According to experts interviewed by the Institute for Security Studies, though South Africa is one of the few countries that has ratified the 2005 protocol, it did so for “diplomatic reasons” and “has no intention to follow through.” Indeed, South Africa has yet to take significant steps towards the regionalization of migration policies as called for in the protocol. 

It is important to understand that there is still no regional migration protocol for the SADC and labor movements continue to be governed by bilateral agreements and national labor laws.

Other Relevant Facts About South Africa’s Participation in SADC Policies/Treaties:

South Africa’s Bilateral Labor Migration Agreements

South Africa has bilateral labor migration agreements with several countries, such as the following:

Botswana

South Africa established a memorandum of understanding (MOU) on labor migration with Botswana.

Lesotho

Free movement of people from Lesotho to South Africa for up to 30 days

Labor migration from Lesotho is permitted but work permit is required 

A Lesotho Special Permit (LSP) existed for certain Lesotho migrants in South Africa until December of 2019. Recently, the LSP was replaced by the Lesotho Exemption Permit (LEP), which is only available to valid LSP permit-holders. The LEP is a new four-year special dispensation for certain Lesotho nationals.

eSwatini

MOU on labor migration with South Africa 

Angola

No visa needed for 30 days (for purposes of tourism or business)

Angolan Special Dispensation Permits were issued to around 2,000 Angolan former refugees. The current permit expires in December 2021.

Zimbabwe

Bilateral agreements between South Africa and Zimbabwe have eased movement for a number of Zimbabwean labor migrants through special dispensation permits granted to a specific number of people (245,000). The current Zimbabwean Special Dispensation Permit is referred to as the ZSP.

Mozambique

Holders of ordinary passports do not need a visa for 30 days

MOU on labor migration with South Africa

These agreements essentially govern migration in southern Africa. By implementing these bilateral arrangements, South Africa has at least complied with one of the main aims of the 2005 Draft Protocol on the Facilitation of Movement of Persons.  

The problem with these bilateral arrangements is that they tend to place the most emphasis on controlling and discouraging movement, rather than managing it effectively.

The Institute for Security Studies argues that the SADC should use these bilateral agreements as a stepping stone to develop the implementation of regional migration governance.

Special Dispensation Permit

Special dispensation permits have been issued by some States in the SADC region. The governments of South Africa, Zimbabwe, and Mozambique have issued “special permits” to certain categories of non-citizens to allow them to secure work in these nations.

According to the Migration Data Portal, more information needs to be gathered in order to determine the progress of this initiative.

SADC Labor Migration Policy Framework (2014)

The goal is to promote sound management of intra-regional labor migration for the benefit of both sending and receiving countries, as well as migrant workers. The regional labor migration policy framework seeks to promote:

  • Development and implementation of national labor migration policies
  • Development and conclusion of multilateral and bilateral labor agreements
  • Protection of migrant workers’ rights
  • Harmonization of national labor migration policies

The SADC Labor Migration Policy Framework was approved by SADC Ministers and Social Partners in July of 2014. It was signed at the SADC Heads of State and Government Summit (South Africa signed) in July/August of 2014.

The Framework is not a binding legal instrument and there is no provision for ratification. It is “likely to remain unimplemented.”

SADC Labor Migration Action Plan

First version approved by SADC Ministers and Social Partners for 2013-2015, second version approved for 2016-2019, third version approved for 2020-2025.

The 2016-2019 version of the Action Plan laid out 5 outcomes aimed at promoting labor migration. The 2020-2025 version is based on the idea that well managed labor migration is mutually beneficial and can facilitate greater development and economic stability for all SADC countries.

It appears that once the SADC Ministers and Social Partners approved the Labor Migration Action Plan, it applies to all SADC member States (including South Africa). However, the Action Plan is not binding.

According to the 2016-2019 Labor Migration Action Plan, South Africa held a national consultative stakeholders workshop on labor migration policy in 2015. South Africa also signed the Declaration on Tuberculosis in the Mining Sector (affects mineworkers). South Africa is a major reason for why the Declaration on Tuberculosis was adopted.

SADC Protocol on Employment and Labor (2014)

South Africa signed the SADC Decent Work Programme in May of 2013. South Africa also has its own Decent Work Country Programme (2018-2023) which aligns with some of the priorities of the SADC Decent Work Programme.

Migration Dialogue in Southern Africa (MIDSA)

MIDSA was established in 2000. MIDSA gives SADC State governments the opportunity to engage in non-binding and transparent discussions on migration.

Some of the specific areas of discussion include: border management, irregular migration, labor migration, migrant health/rights, migration and development, return and readmission, and migration governance.

South Africa was a founding member and is currently a member state of MIDSA. It was also previously a Chairing Country of MIDSA.

Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and SADC Tripartite Free Trade Area (TFTA)

A main goal of this tripartite agreement is to speed up the facilitation of free movement of goods and persons between the three regional economic commissions (RECs).

South Africa both signed and ratified the TFTA.

South Africa National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance  

Approved March 2019. This is not an SADC Action Plan, but it relates to economic migration from African countries.

The NAP notes the impact and importance of migration policy on xenophobia and related intolerance (“To complement enforcement measures , government should increase its efforts towards prevention of racism, racial discrimination, xenophobia and related intolerance in areas such as immigration policy…”).

The Economic Community of West African States (ECOWAS) prides itself as the first region on the African continent with a free movement initiative. Member States adopted the Protocol on Free Movement of Persons, Residence and Establishment in May of 1979. The Protocol states the right of ECOWAS citizens to enter, reside, and carry out economic activities in any ECOWAS member state.

It also outlines a three-step roadmap to achieve freedom of movement of persons in ECOWAS within 15 years. The first phase of the Protocol (five years) concerns the right of visa-free entry and has been “fully implemented.” During this first phase, the requirements for visas and entry permits within the ECOWAS region were removed. ECOWAS citizens with valid travel documents and an international health certificate can enter member States without a visa for no more than 90 days.

In order to facilitate this, ECOWAS introduced and established an ECOWAS passport in December of 2000 (previously known as the ECOWAS travel certificate). The ECOWAS passport exempts holders from intra-regional visa requirements and functions as an international travel document. The ECOWAS passport can only be used for travel within the ECOWAS region.

Currently, ECOWAS member States are working on implementing the Eco-Visa for non-Community citizens. The Eco-Visa is an electronic travel document seeking to boost tourism and business in the region.

The second phase of the ECOWAS Free Movement Protocol, the Right of Residence, has also been implemented. ECOWAS citizens have the right of residence in ECOWAS member States for the purpose of “seeking and carrying out income-earning employment.”

According to the Protocol, in order to secure residence without a visa, ECOWAS nationals must acquire an ECOWAS Residence Card or Residence Permit. Every ECOWAS nation has its own way of offering an “ECOWAS Residence Card/Permit.”

The nations also have different rules for the time limit of the validity of these permits. For example, in Nigeria, the ECOWAS Residence Card (meaning only ECOWAS citizens are eligible to apply) is valid for two years. After two years, the individual must renew the Card to be able to stay in the country.

The third phase of the ECOWAS Free Movement Protocol, the Right of Establishment, is still under implementation in the majority of member States. In this third phase, ECOWAS citizens are granted the right to settle or establish in another member State and gain access to “carry out activities as well as to set up and manage enterprises, in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals.”

Additionally, ECOWAS has also introduced measures to ease the movement of people transported in private and commercial vehicles by coordinating policies that allow vehicles to enter a member State for up to ninety days (private vehicles) and fifteen days (commercial vehicles). With respect to this project, the majority of ECOWAS member states have instituted the ECOWAS brown card, which serves as an insurance of motor vehicles and covers the civil responsibility of the owner within the ECOWAS region.

ECOWAS: Challenges and Issues 

Despite these successes, there also exist a series of challenges and issues. One significant issue is that the ECOWAS Protocol on Free Movement of Persons, Residence and Establishment allows member States the right to refuse admission into their country if an individual is considered “inadmissible” under domestic laws. This provision interferes with the purpose of the Protocol because countries have and continue to implement restrictive domestic inadmissibility laws. 

Moreover, according to the Protocol, ECOWAS nationals have the right to reside and work in ECOWAS countries, without discrimination, as long as they apply for work permits from the relevant State Agencies. However, in reality, member States impose specific restrictions which mean that ECOWAS citizens are unable to work in any sector of their choice. Another issue is that migrants hoping to settle in a member State often do not apply for work or residence permits, meaning that they work without the required documents.

The White Paper

In 2017, the White Paper on International Migration was released by the South African government.  

The White Paper connects migration, development and security: “South Africans should embrace international migration for development while guarding sovereignty, peace and security”. The main relevant points are as follows: 

  • The White Paper for International Migration acknowledges that migration can help South Africa reach its National Development Plan goals. 
  • The White Paper takes a pan-African stance, which seeks to move away from the colonial legacies of previous migration policies, and it references the AU Agenda 2063
  • It sets out a fully automated visa application system (for all migrants), whereby applications are made in countries of origin, and are subject to advanced security checks using improved data systems and biometrics. 
  • The White Paper aims for visa-free travel for African citizens (i.e., the ability to enter South Africa for 90 days upon arrival at South Africa’s borders). This would, however, only work if there are return agreements and security measures in place.  
  • ‘Trusted travelers’ from Africa will be able to access long-term, multiple-entry visas.  
  • It aims to implement more ‘Special Dispensation’ Permits for certain SADC nationals. 
  • It aims to roll out new visa options for SADC nationals: a special work visa, a trader visa and Small Medium Enterprise Visa, etc. These visas would be dependent on bilateral agreements with South Africa and sending countries, and would be subject to requirements, such as business registration, SARS registration and so on.  
  • These visas would not link into permanent residency. In fact, the White Paper delinks permanent residency from several immigration options.  

Recent developments + implementation of the White Paper on International Migration

The White Paper on International Migration was ‘approved by Cabinet for implementation’ in December 2019. 

The minister of Home Affairs’ narrative is between development and security. The narrative around The White Paper’s implementation shifts from development to security focuses. For example, the Minister of Home Affairs said on 04 March 2020: “The Republic of South Africa’s International Migration approach is focused towards prioritising development in Africa and its development orientated. Actually, throughout the whole world, migration without development won’t be successful. South Africa’s approach is consistent with the White Paper on International Migration which recognises the nexus between migration and development and migration and security.’ 

The plan is to prioritise ‘key elements’ of White Paper – and implement BMA, immigration review, critical skills.  

On 20 July 2020: Minster of Home Affairs said that the ‘draft Immigration Bill is still being developed in consultations with relevant stakeholders. It will however be submitted to Parliament for consideration, once the review of the White Paper on International Migration has been undertaken and finalized.’  

The South African government is first reviewing the White Paper on International Migration, and then drafting amendments to legislation. The plan, according to the Department of Home Affairs, is to now focus on ‘key elements’ of the White Paper which seem to be: the establishment of an effective Border Management Authority (BMA), modernization, a review of Immigration Policy and subsequent legislation, an upgrade priority land ports of entry, the One-Stop Border Post Policy, Improved client experience through leadership, early birth registration, critical skill visas and a “War on Queues”.  

The Portfolio Committee on Home Affairs reported back in parliament about their Medium Term Strategic Framework (MTSF) Commitments from 2019 to 2024’.

SADC visas are not explicitly mentioned here – but ensuring speedy administration of critical work permits is, as well as a review of the policy on international migration and the amendment of relevant legislation in support thereof (Report of the Portfolio Committee for Home Affairs Strategic and Annual plan).  

However, there has been some movement regarding migration and development in the SADC context. DHA stated (in May 2020) that by 2025, they want to ‘contribute positively to a capable and developmental state’, and they state (in May 2020) that DHA ‘could play a key role in enabling regional development by working with SADC countries through the Department of International Relations and Cooperation (DIRCO) to establish efficient, secure and managed migration’. 

Border Management Act 

The BMA is seen as a critical aspect of the implementation of the White Paper on International Migration. 

On 16 July 2020, the Border Management Authority Act was signed into law.  

In short, the BMA will create an overarching structure to manage the borders. At the moment, 8 different government departments work at the border.  

The BMA is seen by supporters as a method to streamline border management, increase security and lessen ‘illegal’ entries. “The integrated Authority will contribute to the socio-economic development of the Republic and ensure effective and efficient border law enforcement functions at ports of entry and borders”, according to the presidency.   

 Critics have raised concern around the over securitization of the borders, denial of entry to certain persons (especially those seeking asylum), and the over-dominance of borders by one single force, rather than ensuring due checks and balances. 

Amendments to Immigration Act 

Several ministers have made mention of adjusting regulations or even immigration legislation with regards to economic migration. In July 2020, the Minister of Employment and Labour laid out intentions to develop new legislation or new regulations to limit the industries which employ a high number of foreign workers

In September 2019, small business development minister spoke of plans to develop regulations specifying the sectors where foreign nationals are not allowed to participate.  

These two developments seem to be couched in concerns around xenophobic violence and trucking issues rather than long-term considerations.  

The critical skills list was due to be updated in March 2020. This has not occurred, yet, but a draft Critical Skills list evoked criticism from those in the immigration and business sectors as many professions and skills were taken off the list.   

However, there has been optimism at the current Minister of Home Affairs being open to ‘an immigration policy beneficial to the country and his duties as the new home affairs minister’.  On 23 July 2020, Deputy Finance Minister David Masondo announced in the Budget Vote speech that ‘Reducing the skills deficit by attracting skilled immigrants’ was a vital aspect of South Africa’s economic strategy

Professor Jenny J Lee of the Center for the Study of Higher Education at the University of Arizona in the U.S. and visiting scholar at the University of Cape Town in South Africa, said: “The challenge in obtaining visas in South Africa…is not simply a matter of changing visa policies, but more importantly a matter of forging a common African identity and agenda. With ongoing xenophobic violence against African immigrants as threats to local labour, the problems might escalate.”

According to the Visa Openness Index, South Africa is ranked 35 (out of 54) in terms of visa openness on the African continent. South Africa has a score of 0.283 (the highest possible score—meaning most open—is 1). In order to be able to work in South Africa, foreigners must obtain work visas, which have a number of requirements.

These visas are secured through the Ministry of Home Affairs, but, much like in other SADC countries, it is not always easy to acquire authorization to work in South Africa. In fact, accessibility to work visas in South Africa seems to be getting even more difficult.

The nation recently adopted immigration legislation that has been “sharply criticized” by business leaders, non-profits, and migration experts within the country and the region. The new strict regulations affect economic migrants. Experts argue that such rules could threaten South Africa’s economic growth by turning away potential investors and skilled foreign workers.

Despite these concerns, the South African government does not seem open to relaxing economic migration regulations. In fact, on July 8th, the Minister of Employment and Labour Thulas Nxesi announced that the government is considering new regulations to limit even further the employment of foreign nationals in South Africa.

This new legislation is expected to affect foreign workers in the road and freight sector, the hospitality sector, restaurants, security, and farming and agriculture. Thus, overall, it seems that South Africa is trending negatively in the region in terms of accessibility to work visas.

 

New research on undocumented migrant youth in South Africa

We chat to Lena Opfermann, who recently completed her PhD research on the experiences and coping mechanisms of undocumented migrant youth in South Africa – using a theatre-based research method.

Q. Your research, Everyday experiences and ‘performative agency’ among undocumented migrant youth in South Africa, was recently published in a journal. What does the research look at?

A. My research explored the experiences of undocumented migrant youth in South Africa. In particular, I was interested in understanding how young people who live in South Africa without their parents and without a legal document experience their daily realities. To explore this question, a group of ten participants aged 13 to 21 attended a workshop series in which we used theatre-based activities like role play and mime as well as drawing, creative writing and group discussions to understand what mattered to them.

Q. What were the main findings of this research?

A. The findings were two-fold. Firstly, the research showed that participants’ lives are affected by emotional, legal and practical challenges such as loneliness, discrimination and fear. Secondly, the research showed how participants cope with and contest these challenges. In this regard, they used their theatrical performances in the project to denounce the discrimination and oppression they experience in their daily lives. In public interactions with others, however, participants emphasised their strengths (such as speaking local languages or knowing their way around). I called these strategies ‘performative agency’. Performative agency helps the young migrants to cope with their challenges and improves their integration in a hostile environment.

What policy recommendations would emerge from the findings of your research?

This research improves our understanding of how undocumented migrants navigate and negotiate their daily lives. In order to offer appropriate responses to their challenges, policy makers and practitioners should recognise and draw on the young people’s capacities to cope, contest and integrate. Paying attention to their performative agency as explained above can be a useful starting point in this regard.

Where can we read your research?

I have published three articles from this research so far. Feel free to drop me an email and I am happy to share the articles. My contact is lena.opfermann@beds.ac.uk.

Lena was part of the Scalabrini team from 2008-2011 – and was instrumental in establishing the Advocacy Programme. In 2017, she completed her PhD studies at the University of York. She is currently a Lecturer in Applied Social Studies at the University of Bedfordshire. 

birth registration south africa

Birth Registration in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on current and planned changes in South African migration law. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

For further information about the issues discussed in the series, contact lotte@scalabrini.org.za or you can visit www.genderjustice.org.za.

This article used several useful resources published by Lawyers for Human Rights, including the online handbook on Preventing Statelessness, and a pamphlet on Childhood Statelessness. You can watch a video about birth registration here.

  1. What is birth registration?

As we will discover in this article, it is set in international law that every child – wherever they are born, and whoever they are born to – must have their birth registered. This means that the birth is officially recorded by a branch of a government or state. In South Africa, children who qualify for citizenship, or children of permanent residents and refugees, are recorded in the National Population Register when their birth is registered. (Children born to South African citizens outside of South Africa are also registered in the National Population Register.) This is a national database of such children born within South Africa.

Normally, this is completed upon a child’s birth, and takes the form of a birth certificate that is usually entered into a form of population register. At a minimum, a birth certificate sets out the child’s legal name, their date of birth and their place of birth. A birth certificate can prevent a child from becoming ‘stateless’ – a situation in which an individual has no recognised nationality at all.

Some parents struggle to have their child’s birth registered. In South Africa, this can cause huge problems, creating barriers to accessing services, basic child and human rights, education and health service. Section 28 of the Constitution of South Africa, which requires that the ‘best interests’ of the child to be the priority in all decisions and matters concerning the child. The South African courts have ruled, many times, that it is in the best interest of the child to have a birth certificate and access to a nationality. However, as we shall see, various regulations and practices in South Africa are resulting in hundreds of children existing without birth certificates in South Africa today.

  1. What does a birth certificate look like in South Africa?

In South Africa, a ‘Notice of Birth’ is issued when a child is born and certain documents (such as a medical witness to the birth) are provided. This is a prerequisite to being issued a birth certificate at the Department of Home Affairs. Recently, however, the Department of Home Affairs has set up ‘offices’ at major hospitals and clinics where birth certificates can be issued directly.

Previously, the South African government issued abridged (short) and unabridged (long) birth certificates. An Abridged/short birth certificate reflects only the individual’s date of birth, place of birth, name and identity number, if applicable. An unabridged/long birth certificate (which is the only type that is issued by the South African government since 2013) also provides the mother’s and father’s details – including their names, dates of birth and nationalities. The unabridged birth certificate can prove a claim to a child’s nationality.

As of March 2013, the Department of Home Affairs (the body responsible for issuing birth certificates in South Africa) stopped issuing abridged, or short birth certificates. Only unabridged birth certificates are issued since this date.

Children who are born to two non-South Africans, and who do not qualify for citizenship, are entitled to a birth certificate, as per the Births and Deaths Registration Act (BDRA). However, in these cases, the children are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.

  1. Why us birth registration so important?

In South Africa, a birth certificate is vital to access the following rights:1

  • A right to a name and nationality, as set out at Section 28 of the Constitution. Without a birth certificate there is no way to prove a child’s nationality,
  • A right to basic education, as set out in South Africa’s Bill of Rights. Schools are becoming increasingly strict around enrolling students who cannot provide documentation,
  • A right to healthcare, as set out in South Africa’s Bill of Rights. Healthcare – especially for children over the age of seven, becomes increasingly difficult to access if the child does not have a birth certificate.
  • Access to other services such as child protection mechanisms, and other state services.

Children’s rights are specifically applicable to those persons under the age of eighteen. Without a birth certificate, it is not possible to prove a child’s age (unless an age assessment is completed by a medical practitioner) and therefore children near the age of eighteen might well be treated as adults. This is especially problematic in cases of detention and deportation.

The lack of a birth certificate has negative effects on many areas of a child’s life, aside from those stated above. A person’s fundamental rights to equality, human dignity, freedom and security of person, and fair labor practices1 are all compromised when that individual has no documentary proof of where, when and to whom they were born.

Aside from this, birth registration is now required as a prerequisite to access an ID – it is at birth registration that an ID number is allocated to an individual and he or she is added to the National Population Register. Children who should be issued and ID number – such as those children born to South African citizens – will face barriers to accessing ID documentation later in life, and will struggle to complete

You can watch a video about birth registration here.

NOTE:

  1. These rights pertain to Sections 9, 10, 11, 12 and 23 of the Constitution, accordingly.

 

  1. What does international law say about birth registration?

International law is very clear about a child’s right to birth registration. Here are some of the international laws that speak to this issue – of which South Africa is a signatory, meaning that it must uphold their provisions and not take actions against their goals and principles.

1948 Universal Declaration on Human Rights

This is considered to be the foundation for international human rights law. At Article 15, it states that everyone has the right to nationality, and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

1989 United Nations Convention on the Rights of the Child

Article 7 states that a child “shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality.”

1966 International Covenant on Civil and Political Rights

Article 24(1) states that ‘every child’ has the right to the protection which his status as a minor grant him ‘without any discrimination as to … national or social origin.’

1999 African Charter on the Rights and Welfare of the Child

Article 6 confirms that ‘Every child shall have the right from his birth to a name. Every child shall be registered immediately after birth’ and that ‘Every child has the right to acquire a nationality.’

Lawyers for Human Rights’ book on Preventing Statelessness contains a useful section on International law, should you want to read further.

  

  1. What South African laws exist around birth registration in South Africa?

There are several laws in South Africa which confirm a child’s right to a birth certificate. As we will see in Section 6 of this article, the reality is quite different.

The Constitution of South Africa: The Bill of Rights

A number of the rights in the Bill of Rights apply to both citizens and non-citizens in South Africa. (For example, the right to vote is reserved for South African citizens only.)

Section 28 of the Constitution of South Africa states that ‘every child has the right to a name and a nationality from birth’. In South Africa, these rights can only be brought to life through the possession of a birth certificate.

The Bill of Rights confirms other fundamental rights that can only be truly accessed with valid documentation (such as a birth certificate) that proves the person’s nationality, and therefore their legal and administrative existence in South Africa. For example, the right to equality (section 9), the right to freedom of movement (section 21), and the right to human dignity (section 10) are all affected if a child or an adult has no document to prove their nationality.

The Births and Deaths Registration Act (1992)

The Births and Deaths Registration Act provides the processes for the birth registration of all children born within South Africa – whether they are born to South African or foreign parents. Lawyers for Human Rights explains that, under this Act, “children born in South Africa who do not qualify for citizenship are entitled to a birth certificate under the Births and Deaths Registration Act. However, they are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.”

The Act requires that births should be registered within thirty days of birth. (If this is not completed, the a ‘Late Registration of Birth’ process has to be followed – see question 7).

The Regulations on the Registration of Births and Deaths (2014)

The Regulations of the Births and Deaths Registration Act sets out the rules, forms and procedures around applying for a birth certificate in South Africa. These regulations were amended in 2014, and new draft regulations are being considered in parliament. The Regulations of 2014 confirmed that hand-written birth certificates would no longer be issued, and that biometric details would be recorded to register births.

Some aspects of these Regulations are:

  • Importantly, the Regulations require that both the parents of a child must have a valid passport and permit (visa) or a valid asylum seeker permit or refugee status to register the birth of their child. This has had hugely detrimental effects on children born to one or two non-South African parents, as we see in Section 8 of this article. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court ordered that the Birth and Deaths Registration Act must be read to mean that parents must show valid documentation to register their child’s birth ‘where possible’. The Naki judgement also allows single fathers to register births of their children.
  • Processes for the Late Registration of a birth. These are split into two categories: the birth registration of children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. Several documents are required for a Late Registration of birth (see Section 6 of this article).
  • The Regulations also set out the processes to register a child born out of wedlock (for more information on this, see page 76-78 of the preventing statelessness handbook), for children born outside of a hospital or clinic (see page 79 of the preventing statelessness handbook), and the registration of a birth by a single father, among other scenarios.

The Citizenship Act of South Africa (2010)

The Citizenship Act of South Africa does not speak specifically to birth registration, but sets out who is able to gain – or apply for – South African citizenship. Children born to South African citizens are, automatically, South African citizens. As of 2013, the amended Citizenship Act came into force. Section 4 of the amended Citizenship Act now states that children born to non-South African parents can apply for South African citizenship ‘upon becoming a major’ (i.e. turning eighteen years of age) if they have lived in South Africa from their date of birth to the date of turning eighteen and if their birth has been registered – i.e., if they have been issued a birth certificate as per the Births and Deaths Registration Act. This is an example of how vital a birth certificate is to accessing citizenship.

Although this provision exists, it has not yet been applied, as the Department of Home Affairs has indicated that it is not applying it to children born before the amendment of 2010. This was subject to litigation, in which the Supreme Court of South Africa confirmed that it should indeed apply to children born before 2010. This is yet to be applied, and the Legal Resources Centre will provide updates.

 

  1. What is late registration of birth?

In South Africa, any birth that is not registered after thirty days is considered a Late Registration of Birth. As stated in section 2 of this article, the Department of Home Affairs has set up ‘offices’ at major hospitals and clinics where birth certificates can be issued directly. However, this is not always accessible to parents – especially those parents who are not South African. A Notice of Birth is required to gain a birth certificate, and to be issued a Notice of Birth, valid documentation must be held by both parents. This has resulted in many children not being issued a birth certificate in South Africa.

There are two categories of Late Registration of Birth applications: children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. The requirements for a Late Registration of Birth differ depending on whether a child was born to South African parents, permanent residents, refugees, or other non-nationals.

If you are planning to apply for a Late Registration of Birth, we recommend that you look at the Regulations and contact your local Department of Home Affairs office to find out more. If you need further information, see Section 8, below, for people to contact.

The minimum requirements for a Late Registration of birth are listed below:

  • A proof of birth, completed by a medical practitioner who attended to the birth of examined the mother after birth
  • An affidavit by a South African citizen who witnessed the birth
  • Biometrics of the child
  • Fingerprints of the parents or adoptive parents
  • Certified copies of the parents’ ID documents (and, in cases where one or both parents are non-South African, certified copies of valid passports, visas, or asylum documents are required)
  • Where applicable, a marriage certificate of the parents
  • Where applicable, a death certificate of any deceased parent
  • Where applicable, a certified copy of the ID document of the next-of-kin
  • Proof of payment of a fee.

In some cases, a panel will interview and discuss certain late registration of birth applications. In some cases, where one parent is a non-national and unmarried, Home Affairs can request a DNA test.

(Although, the Naki and Others v Director General: Department of Home Affairs and Another Naki judgement, as mentioned in Question 5, also found that, even if you cannot provide all these documents, your application for Late Registration for Birth, your application must still be accepted and considered.)

If you are planning to apply for a Late Registration of Birth, we recommend that you look at the Regulations and contact your local Department of Home Affairs office to find out more. If you need further information, see Section 8, below, for people to contact.

  

  1. What are the barriers to registering births of non-national children in South Africa? 

There are several barriers to children being issued birth certificates in South Africa – and due to the regulations that exist, a growing number of children are living without any proof of birth. This is not in the best interests of the child, nor is it in the interests of the South African state, in that any state wishes to document the number of people born within its borders. It is impossible to quantify how many children do not have birth certificates in South Africa. A study found that of 108 foreign children in care, half did not have birth certificates.

This situation has prompted criticism from UN Committee on the Rights of the Child, the African committee of experts on the right of the child and the UN Human Rights council on South Africa’s violations of international law on the child’s right to birth registration and a legal identity.

Both parents need valid documentation to register their baby

In South Africa, the Regulations on the Registration of Births and Deaths require both parents to hold a valid passport and permit (visa) or a valid asylum or refugee document. This means that the birth registration of children born to one or both parents who do not hold current legal stay in South Africa is impossible. This also affects South Africans who do not hold an ID book or have blocked IDs.

Whilst it might seem like a logical requirement of foreigners in South Africa, ensuring valid documentation in South Africa can be complex and, sometimes, impossible. For example, the ongoing closure of the Cape Town Refugee Reception Office has forced asylum seekers into travelling long distances to remain documented. Long queues, denied access and corruption exasperate the difficulties around extending permits. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court found the requirement of parents to show valid documentation in order to register their births to be unconstitutional. The court ordered that these Regulations be read to mean that parents must show valid documentation ‘where possible’. The court confirmed that that a child’s right to birth registration should not be dependent on the documents that their parents do or do not have.

Thirty days requirement

In South Africa, births must be registered within thirty days. Late registration of birth can be complex, especially for those without easy access to offices or the hospital where the birth took place. As explained in Section 6 of this article, several documents are required for a Late Registration of Birth. Those living in rural areas with little or no income may struggle to gather such documentation and travel to government offices and hospitals.

Recent developments

In 2018, the Department of Home Affairs published its proposed new regulations to the Births and Deaths Registration Act. Instead of removing “requirements that may have punitive or discriminatory impacts on certain groups of children”, as recommended by the UN Committee on the Rights of the Child and as ordered by the court in the Naki case, the proposed regulations lower the standard further by removing birth registration for foreign children entirely.

The Regulations are calling for the discontinuation of the issuing of birth certificates to foreign children. The new regulations propose that foreign children be issued with a mere “confirmation of birth” which is “not a birth certificate”, according to the new form. This puts into question those children’s access to their most basic rights – and the ability to claim citizenship.

In our submissions to the South African government and press statements on the issue, we urged the Department of Home Affairs not to pursue this amendment. This issue was covered in the South African media. We are awaiting the finalization of these Regulations, and hope to see our submissions implemented.

 

  1. I have more questions. Who can I ask?

There are several organisations working on this issue. Here are the contact details of three organisations:

 

Detention and Deportation in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. Other articles in this series includes: the Refugee Amendment Act, the White Paper on International Migration, health care access among others.

migrant and refugee access to healthcare

Migrant and Refugee Access to Public Healthcare in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice and Lawyers for Human Rights. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

  1. Introduction

The rights of migrants and refugees to access the South African healthcare system is a complex matter. Laws and policies clash, and medical staff are left confused – especially as implementation of these laws differs depending on the staff or the clinic that you come into contact with. Meanwhile, the South African healthcare system struggles, in some areas, to provide sufficient medical care to any person, regardless of their nationality or status.

  1. How is the South African healthcare system structured?

In South Africa, the public healthcare system is structured in different levels:

  • Clinics treat common health needs, known as ‘primary health care’. Clinics refer patients to hospitals when a patient needs further treatment. Clinics are run by specially trained primary health care nurses. There are different types of clinics such as mobile and satellite clinics.
  • Community Health Centres are larger clinics and they usually have doctors as well as nurses.
  • Hospitals are for surgery, emergency treatment and serious illness that cannot be treated at the Clinic. Clinics and doctors refer patients to hospitals: individuals can only present themselves without a referral if it is an emergency.
  1. What does the law say about migrants and refugees accessing healthcare in South Africa?

There are different national laws and policies in South Africa that map out who is able to access health care, and who must pay for these services. The Johannesburg Migrant Health Forum has developed a useful, printable poster on this topic to help you navigate your rights.

Constitution of South Africa

The rights set out in the Constitution of South Africa provide for all people within South Africa, regardless of their nationality or legal status. This fact has been confirmed by South African courts. The Constitution states that:

  • everyone has the right to have access to health care services, and
  • ‘no one’ may be refused emergency medical treatment.1

The National Health Act

The National Health Act confirms that:

  • All persons in South Africa can access primary health care at clinics and community health centres.2
  • All pregnant or breastfeeding women and children under the age of six are entitled to health care services at any level.3

The Refugees Act of South Africa

The Refugees Act sets out rights for asylum-seekers and refugees in South Africa. It states that:

  • Refugees in South Africa have the same right to access healthcare as South African citizens.4 This right is widely interpreted to include asylum-seekers, as well.

Department of Health 2007 Circular

This circular confirmed that:

  • Refugees and asylum seekers, with or without permits, can access the same basic health care services as South African citizens (which means it is free at point of use, but can be charged thereafter), and
  • Refugees and asylum seekers, with or without permits, can access Antiretroviral Treatment in cases of HIV.

This does not mean that all services are free. Primary healthcare services are provided free of charge, but higher levels of care are subject to a fee. In these cases, refugees and asylum seekers are subject to a means-test, which calculates the fee depending on the patient’s income. This is the same test that is applied to South African citizens.

A note on the Immigration Act

As we’ve seen, the Constitution, the National Health Act and the Refugees Act spell out refugees and migrants’ rights to access health care. The Immigration Act is quite different, however. It states that staff at clinics and hospitals must find out the legal status of patients before providing care (except in an emergency).

The Immigration Act goes further to say that hospitals and clinics (along with other state institutions) ‘shall report to the Director-General any illegal foreigner’ or anyone whose status is not clear.5 However, this can only be enacted if this does not affect the patients’ rights that are set out in the laws that we have listed above – the Constitution, National Health Act and Refugees Act.

In our opinion, it is not justifiable to expect nurses and doctors to report people they suspect as ‘illegal foreigners’ to the Department of Home Affairs. This aspect of the Immigration Act is at odds with other, overarching laws in South Africa. It is also at odds with a widely-held international opinion that views healthcare facilities as ‘safe spaces’ – a message promoted by organisations such as Medicins Sans Frontieres.

  1. Who pays what at clinics and hospitals?

The Uniform Patient Fee Schedule sets out who must pay for certain services at a South African health facility, which is explained in the Classification of Patients for the Determination of Fees. Note that fees are not payable for “free services”.6

In short, the following non-nationals should be means-tested (in the same way as South African citizens) at the hospital:

  • Non-South Africans who have permanent or temporary residency in a passport, and
  • Anyone from the SADC region who is undocumented.7

The hospital looks at what they earn and decides what fee they should pay. Remember (as we stated above) that refugees and asylum seekers are subject to the same test; the hospital decides what level of fee they must pay depending on their income.

It means that the following people will have to pay full fees at the healthcare facility, and cannot access a means-test:

  • Undocumented people from outside the SADC region,
  • people on a tourist/visitor’s visa.
  1. What about accessing specialist treatment, such as kidney dialysis? 

In short, this depends on the resources of the South African healthcare system. For specialized care, patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers and permanent residents must be treated the same as South African citizens.

The South African healthcare system struggles to provide specialist medical care to all those that need it – especially procedures such as kidney dialysis, or complex cancer treatments. This is due to a lack of resources and other issues. Both non-South Africans and South Africans are affected by this.

When it comes to providing these specialized services, the South African healthcare system must apply a principle called ‘progressive realization’. This the idea that the state must provide as much as it can, within the limitations that exist. They must also make an effort to improve the realization of socio-economic rights for everyone in South Africa. You can read more about this here.

This issue has been explored in South African court cases. The famous Soobramoney case (1997) found that, while the state must always provide everyone with emergency medical treatment, this does not include ‘chronic illnesses for the purpose of prolonging life’.8 The provision of this type of specialist care (such as dialysis) should be administered by hospitals to their best ability.

Patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers and permanent residents must be treated the same as South African citizens. There have been cases in which refugees were not provided with specialist services due to their ‘nationality’. If this treatment was denied solely because of the patient’s nationality, it is not constitutional.

  1. What about organ transplants?

As we have seen, specialist treatment must be provided according to the resources of the hospital. Refugees and asylum-seekers will be assessed in the same way as South African citizens – depending on their medical need and the resources available. However, for organ transplants, the National Health Act states that ‘an organ may not be transplanted into a person who is not a South African citizen or a permanent resident of the Republic without the Minister’s authorisation in writing’.9 Those who are not South Africans or permanent residents who are denied organ transplants would have to challenge this in court, or access the transplant at a private hospital.

  1. What about accessing treatment for HIV or TB?

Everyone in South Africa, regardless of their nationality or documentation status, has the right to access treatment for HIV (Anti-Retroviral Treatment) and TB. The Department of Health 2007 Circular confirms this.

  1. What about accessing private hospitals?

If a patient is able to afford private medical fees, they can be attended to by a private hospital or clinic, regardless of documentation.

  1. The reality of accessing healthcare in South Africa

It is clear that non-South Africans have several rights to access healthcare in South Africa. But in reality, things are different. There are several angles to think about.

Some migrants and refugees are denied access to healthcare simply because they are foreign.

There have been several instances of migrants and refugees being denied treatment solely based on their nationality. This is known as ‘medical xenophobia’. See Section 12 for a list of organisations to contact should you be denied medical treatment because of your nationality or status in South Africa.

Migrants or refugees being denied treatment is not always due to “medical xenophobia”.

However not all instances of poor treatment are ‘medical xenophobia’. For it to be xenophobic, medical treatment has to be wrongfully denied on the grounds of someone’s nationality or legal stay. There are other grounds that medical care might be wrongly denied. The healthcare system in South Africa is found to be in an ‘advanced state of disrepair in large parts of the country’. Staff can be highly stressed in such environments, and South Africans also face discrimination in accessing medical care.

The laws about non-South Africans’ access to healthcare are not consistent and create confusing situations for medical staff. People working in hospitals are given unclear guidance on who can be treated. This is not helped by the fact that the Department of Health has published circulars or memos which confuse medical staff about migrants’ and refugees’ rights to access health care. Remember, the laws explained in section X override circulations, policies and memos. 

  1. How do we respond to inflammatory comments about ‘foreigners draining the healthcare system?’

The issue of non-South Africans accessing healthcare has also been the subject of controversial comments made by leaders and politicians. Several academics and organizations have condemned this. In summary, the main points to remember are:

  • When dealing claims that ‘foreigners burden the healthcare system’, it is important to remember that, in South Africa, only 3% of the population are foreign-born, and the number of migrants and refugees using the South African healthcare system is most likely in line with this percentage.
  • Furthermore, research has found that the majority of migrants in the Southern African Development Community (SADC) are not moving in search of healthcare, but are typically healthy, as they need to be in good health to travel. This what is called the ‘healthy migrant effect’.
  • Non-South Africans pay for their healthcare services just as South Africans do. Non-South Africans are either subject to the same means-test hospital fees, or they are subject to the highest fees (if undocumented and not from SADC).
  • The problem is not migrants’ use of the healthcare system; it is regarding the governmental planning of budgets with migration in mind. Internal migration (i.e. people moving within the country of their birth) accounts for much more than cross-border migration in SADC. Internal mobility is not taken into account when planning healthcare allocation. Furthermore, some budget and fiscal planning is based on outdated population Updated population statistics and research must be used when planning such services.
  1. What is needed to improve the situation?

As mentioned, the South African public healthcare system is struggling to address the nation’s needs. Many people struggle with access, South African and non-South African alike. Groups of the population, such as people living in rural areas, will face specific challenges. Similarly, there are unique and specific challenges that are faced by non-nationals, which are mostly linked to language and documentation. There are some actions which can assist in clarifying this complex matter:

  • There is a deep need for evidence-informed policy processes and frameworks. Despite being a region that witnesses such high levels of migration, these movements are not commonly taken into consideration when developing health responses – including for treatment and prevention of communicable diseases.
  • There has been little case-law (legal cases) on the issue of migrants and refugees access to health. The laws, policies and practises around this issue are very unclear. It would be beneficial to receive legal clarification on such issues.
  • Governmental planning of healthcare budgets and resource allocation must take into consideration correct predictions of both cross-border and internal migration patterns in South Africa, using current population data.
  • The healthcare system needs to be more responsive and reactive to migration: South Africa would benefit from migration-aware and mobility-competent healthcare systems, that facilitate movement within the country (including within cities) and between countries in SADC.
  • We advocate for increased awareness about migrants’ health rights – training on migration, mobility, health and development for all levels of staff in the Department of Health, including frontline staff, healthcare providers, facility managers, district and provincial health co-ordinators, and within the national department, would be beneficial. As one expert explains, ’understanding of migration is poor within sectors responsible for developing appropriate responses; negative, unsupported assumptions relating to the prevalence of cross-border migration, the spread of disease, and the burden on receiving health systems prevail.”
  • We advocate for the printing and distribution of uniform and correct classification of non-nationals when being means tested for co-payment for healthcare, and the uniform implementation of national monitoring of the correct implementation of existing legislation within health facilities.
  • We advocate for those who are denied rightful access to health to lodge the matter with the Office of Health Ombud or to contact one of the organisations below for advice.
  1. I have more questions. Who can I ask?

 You can contact one of the following organizations for further questions and advice.

 

refugee amendment act

Refugee Amendment Act

Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice and Lawyers for Human Rights. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

Introduction

The Refugees Amendment Act, which was signed into law on 14 December 2017, can only be implemented once the Draft Regulations are finalised and published in the Government Gazette. At this time, it is still unclear when the Amendment Act will go into force – if at all.

As with any law in South Africa, public involvement is part of the process. The Advocacy Programme at the Scalabrini Centre of Cape Town has provided the South African government with submissions on the Refugee Amendment Bill and comments on the Draft Regulations to the Refugees Amendment Act. In short, we are concerned that, by creating fundamental changes, this Act would infringe on the constitutional rights of asylum seekers and refugees in South Africa.

The Refugees Amendment Act is being enacted at a time of change in South African migration policy. the White Paper on International Migration for South Africa sets out a general blueprint for future migration policies, plans to add severe restrictions the refugee system (read more about it here). In this way, the Refugee Amendment Act seems to be ‘laying the groundwork’ for such changes.

  1. Contact Us

Do you have further questions on the White Paper on International Migration? Please visit www.genderjustice.org.zawww.scalabrini.org.za, or contact lotte@scalabrini.org.za and get in touch!

  1. Permanent Residency

The Refugees Amendment Act would lengthen the amount of time a refugee has resided in the country before being allowed to apply for certification to apply for permanent residence from the current five years to ten years. The UNHCR recommends that the period of time before recognising a permanent status should be five years. In our comments, we recommended that the time period remain at five years, especially considering the protracted determination process which means many remain on asylum temporary permits for many years, in order to qualify for application to permanent residency.

  1. Changes to the Refugee Appeal Board

 The fact that the Refugee Appeal Board is severely over-stretched and under-resourced is well documented, and has resulted in asylum seekers waiting for several years for hearings and outcomes. The Refugees Amendment Act would create the Refugee Appeals Authority, which would allow for one member to take a decision (rather than the current quorum) and for more flexible appointments. Scalabrini’s submissions agreed with some of the proposed improvements to the appeals procedure, and suggested an amnesty project to allow the Refugee Appeal Board to clear the huge backlog that they currently face.

  1. Cessation of refugee status

The Refugees Amendment Act would, if implemented, expand the reasons under which a refugee status could be withdrawn. The Act, read with the Draft Regulations, propose a list of actions that would result in the withdrawal of refugee status – including ‘seeking consular services assistance with documentation.’ In Scalabrini’s submissions and comments, concern is raised around the fact that asylum seekers are required, by the Department of Home Affairs, to produce documentation such as marriage certificates – which would require a visit to their consulate, and would risk them having their status withdrawn. The Act would allow the Minister of Home Affairs to announce a cessation upon an entire category of refugees (or an individual), which we highlight would bypass the checks and balances currently attached to cessations

  1. Exclusion from refugee status

If implemented, the Refugees Amendment Act would expand the reasons for which an asylum seeker could be excluded from refugee status. This would include the committing of a Schedule 2 crime, entering illegally into South Africa, or an offence related to fraudulent documentation. It would also include those who are fugitives from justice in countries ‘where the rule of law is upheld by a recognised judiciary’, and those who do not apply for asylum within five days of entering South Africa. These proposed changes do not adhere to international refugee law, which clearly outlines that refugees should not be penalised for irregular entry into South Africa. UNHCR Guidelines further clarify that ‘the proportionality of the gravity of the offence in question should be weighed against the consequences of exclusion for the individual concerned’.

  1. Abandoning asylum claims

Under the Refugees Amendment Act, an asylum claim will be considered ‘abandoned’ if an asylum seeker does not attend a Refugee Reception Office in the month after the expiry of their asylum permit (unless they have a ‘compelling reason’). In our experience, the expired permit process has been fraught with difficulty for asylum seekers for years and pushes individuals into undocumented statuses. Entering Refugee Reception Offices is no easy task; asylum seekers have to visit Refugee Reception Offices several times before getting documented. For these reasons, many asylum seekers would have their claim deemed ‘abandoned’ – which, in our opinion, places administrative matters over protection and the principle of non-refoulement and is in contradiction to South African case-law which confirms that asylum applications cannot be denied on grounds of delay and that asylum applicants are, even prior to applying, protected by the Refugees Act. Scalabrini’s submissions suggested twelve months given the practical realities as a more realistic period before considering an asylum claim abandoned.

  1. Applying for asylum

The Refugees Amendment Act requires an asylum seeker to report to a Refugee Reception Office no later than five days after arriving in South Africa – or they can be excluded from refugee status. Furthermore, those who do not have an ‘asylum transit visa’ will be interviewed by an immigration officer to determine whether they have ‘valid reasons’ for not holding this transit visa. In the daily work of Scalabrini, asylum applicants often report difficulties in entering a Refugee Reception Office and applying for asylum. Five days to apply for asylum is not realistic – and we expressed concern in the submissions that denying someone an application to asylum simply because they apply on the sixth day is not in line with international refugee law. Given the current backlogs and protracted adjudication processes, this provision could create significant burdens for asylum seekers – and extra layers of administration for the Department of Home Affairs.

Under the Refugees Amendment Act asylum seekers will have to declare all existing dependents family upon their first application in order to have them documented in their asylum file. For those fleeing conflicts in stressful conditions, and with limited English, ensuring all family members are on the asylum application is not necessarily simple. In the submissions, we suggested that family members can be joined into an asylum file at a later date, along with proof of their relationship to the applicant.

  1. Opening and closing Refugee Reception Offices

Under the Refugees Amendment Act, the Director-General of Home Affairs would be able to establish, and disestablish, as many Refugee Reception Offices as he or she regards as necessary – ‘notwithstanding the provisions of any other law’. He or she would also be able to direct any category of asylum seekers to report to any ‘place specially designated’ when lodging an application for asylum. In Scalabrini’s submissions, concerns were around what an ‘other place specially designated’ might mean. We are especially concerned that it may result in what may essentially be de facto refugee camps or detention centres for certain categories of asylum seekers. Home Affairs has closed several Refugee Reception Offices since 2010, all of which were found unlawful by the courts. The laws with which opening or closing Refugee Reception Offices must comply with is not clear in the Refugees Amendment Act. This is of concern to us – especially considering the recent rulings on RRO closures. This amendment might well be paving the way towards the plans to ultimately construct ‘asylum processing centres’ on the northern borders of South Africa.

  1. Removal of the automatic right to work and study for asylum seekers

Under the Refugees Amendment Act, asylum seekers would no longer have the automatic right to work and study. This right would only be ‘endorsed’ on an asylum visa following an assessment process to determine whether the applicant could support themselves in any way (including with UNHCR’s support). If not, they would have the right to work endorsed – but they would need to show proof of employment within two weeks in order to remain with this right. If a workplace does not provide this proof of the asylum seeker’s employment, the employer can face a hefty fine. For those who are studying, the Refugees Amendment Act and Draft Regulations are not completely clear. Proof of studying at a South African education institution will be needed by asylum applicant, implying that the right to study will not be automatically granted.

In Scalabrini’s submissions, deep concerns were raised over the changes to asylum seekers’ right to work and study. The Watchenuka court case in 2003 confirmed asylum seekers’ right to work in South Africa, in that the right to work is interwoven with one’s constitutional right to dignity. The Refugees Amendment Act, it seems, would risk infringing rights to dignity once again. We are concerned that this system, if implemented, will be unworkable, impractical, and will lead to the degradation of asylum seekers’ dignity. What’s more, the UNHCR has confirmed that they are not able to provide shelter to asylum seekers in South Africa – despite the Act envisaging that the UNHCR would do so. The submissions also warned that employers will be hesitant to provide written undertakings (or risk fines), pushing applicants towards informal or unauthorised employment – which is neither beneficial for the asylum seeker nor the South African economy. The administrative process that will be needed to authorise an asylum seekers’ right to work would add further layers to the asylum system, creating more work for officials working in Home Affairs – who should be focusing their time and resources on processing asylum claims. We believe that, if the Department of Home Affairs is able to adjudicate asylum applications within a reasonable period of time, the need to ‘endorse’ asylum seekers’ right to work would fall away. We recommend that the Department of Home Affairs rather funnel resources towards improving efficient asylum adjudications.

 

white paper on international migration

What is the White Paper on International Migration?

Keep up to date with our Teach-Yourself Series – condensed articles on current and planned changes in South African migration law. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.  

For further information about the issues discussed in the series, contact lotte@scalabrini.org.za or you can visit www.genderjustice.org.za

1. Introduction

The White Paper on International Migration was released in July 2017. This Paper sets out the framework for future immigration law in South Africa. Prior to a White Paper, a Green Paper is released, for which we wrote submissions. Green and White Papers form part of the process of law-making in South Africa.

This White Paper sets out major policy changes including:

  1. Changes towards migrants from Africa (especially from the SADC region);
  2. Permanent residency and citizenship; 
  3. The South African asylum system; and
  4. Other international migrants.

The White Paper acknowledges that migration can help South Africa reach its National Development Plan goals, but it also links migration strongly to security risks, trafficking and corruption. In our submissions, we warn that an over-emphasis on the criminality of migration misrepresents most migrants living in South Africa, and reinforces the ever-growing securitisation of migration. 

2. Our General Stance on the White Paper 

We welcome the White Paper’s philosophy of linking migration to development. We also welcome the moves towards more mobility in the SADC region and African continent. At the same time, we are concerned that the White Paper fixates on the link between migrants and criminality, and makes provision only for ‘designer migrants’ – those who are economically established and highly skilled – which can result in a regional brain-drain and uneven regional development. 

We have deep and grave concerns around the changes to the asylum system in South Africa, which we believe will result in unconstitutional ‘camps’ on the borders, where thousands of asylum seekers will risk having their most fundamental human rights abused.

More generally, the terms used in the White Paper (such as ‘illegal migrant’ rather than ‘undocumented person’) contributes to the unnecessary criminalization of migrants. We are also concerned at the White Paper’s lack of referencing sources, as it makes claims that are not linked to research or statistics.

  •  3. Changes towards migrants from Africa

African continent

The White Paper takes a pan-African stance, which seeks to move away from the colonial legacies of previous migration policies. The Paper references the AU Agenda 2063, which calls for the abolishment of visa requirements for all African citizens. The White Paper aims for visa-free travel for African citizens (i.e., the ability to enter South Africa for ninety days upon arrival at South Africa’s borders). This would, however, only work if there are return agreements and security measures in place. ‘Trusted travelers’ from Africa will be able to access long-term, multiple-entry visas. The White Paper plans for a fully automated visa application system (for all migrants), whereby applications are made in countries of origin, and are subject to advanced security checks using improved data systems. 

Southern African Development Community Region

The Southern African Development Community (SADC) has aimed to work towards the free movement of people, goods and capital through various non-binding protocols. In reality, most of the SADC member states have not amended their policies in line with these protocols – and the White Paper stresses that, as the region’s largest economy, South Africa’s realization of this goal is difficult. The White Paper finds that 88% of recent deportations from South Africa were to Mozambique, Zimbabwe or Lesotho. With this in mind, the White Paper proposes the implementation of the following, which would include foreigners already living in South Africa:

  • Implementing more ‘Special Dispensation’ Permits for certain SADC nationals

Special Dispensation Permits have already been issued to certain groups of nationals in South Africa. These are temporary permits that allow certain work/study rights, but offer no pathway to permanent residency. These special permits are implemented through bilateral agreements between South Africa and another country. For example, the Zimbabwean special permit, which was first issued in 2014, offered temporary documentation to the mass influx of Zimbabweans during the economic crash. This permit has been extended three times (the current permits expire in 2021). Other special dispensation permits have been issued to Lesotho nationals and Angolan nationals.

  • New visa options for SADC nationals 

These options would include a special work visa, a trader visa and Small Medium Enterprise Visa. These visas would be dependent on bilateral agreements with South Africa and sending countries, and would be subject to requirements, such as business registration, SARS registration and so on. These visas would not link into permanent residency. 

In our submissions, we welcomed and celebrated these regularization projects, and the creation of a visa scheme for SADC citizens to legally enter, depart, and conduct employment and business in South Africa. We also agree with the White Paper that this will lift huge numbers out of the asylum system, providing relief and allow the asylum system to function (which means the huge changes planned to the asylum system would not be needed).

However, we also note some concerns on the SADC permit plans. Namely,

  • The existing special dispensation permits have been racked with problems of delays, incorrect permits and administrative blocks. To be most effective, we would like to see future dispensations better planned, organised and administered.
  • Existing special dispensation permits are subject to strict timelines, excluding huge swathes of people. We hope that future SADC visas will not be subject to such strict timelines, allowing nationals to apply at different times.

Although a step in the right direction, these ‘special’ permits are selective in who can apply, and when – resulting in a relatively small number of foreigners being documented rather than allowing for fuller SADC migration. It is not clear how low-skilled migrants could benefit from these permits, and risks allowing only ‘designer migrants’ to apply, resulting in brain-drains in sending countries. In the long term, we would support the development of an alternative migration management regime that would lessen the need for special dispensations.

  • 4. Permanent residency and citizenship

The White Paper wants to change the way permanent residency and citizenship are granted. The White Paper wants to de-link temporary residency and refugee status leading to permanent residency all together. The White Paper also wants to de-link permanent residency leading to citizenship. 

Instead, it plans to provide:

  • A ‘long-term residence’ instead of permanent residency, which would be accessible by certain migrants such as highly-skilled migrants on a fast-track system. This would not lead to citizenship;
  • Citizenship, but only to be granted by the Minister of Home Affairs in exceptional cases, after being advised and considered by a new Citizenship Advisory Panel (CAO).

In our submissions, we expressed concern around de-linking refugee status and permanent residency. Permanent residency is currently only granted to refugees who, after careful assessment, are considered to be in ‘indefinite’ need of protection as they are fleeing conflict or persecution that shows no sign of reconciling. According to the White Paper itself, between 2014 and 2016, only 4% of permanent residency applications were made by those with refugee status. Currently, the application to permanent residency via refugee status is an elongated, and careful procedure – and as such does not constitute a ‘pull factor’ for refugees coming to South Africa, as the White Paper claims. 

  • 5. The South African asylum system

The White Paper plans fundamental changes to the South African asylum system, which has caused deep concern within civil society.

Why the White Paper wants to change the asylum system

The White Paper finds the current asylum system to be overburdened, under-funded and non-functioning. Asylum adjudications take years, and many asylum-seekers hold expired documentation. On this basis, the White Paper plans to overhaul the asylum system. 

In our opinion, the challenges faced in the asylum system do not warrant a change in law. These challenges are challenges of implementation, communication, and commitment. For example, many asylum seeker hold expired permits not through a fault of their own, but because they cannot access Refugee Reception Offices (RROs), or their permits are simply stamped on the back rather than properly extended.

  • What the White Paper proposes: ‘Asylum Seeking Processing Centres’

In a move towards an encampment system, the White Paper lays down plans to construct Asylum Seeker Processing Centres on South Africa’s northern borders. We have expressed deep concern about this proposal. We believe these Processing Centers would be seriously detrimental to the rights and realities of asylum seekers, refugees and South Africans alike. We fear that creating detention centres in remote areas of the country will result in the long-term detention of vulnerable people without adequate support or adequate conditions. Such detention is unconstitutional and contrary to international law. Aside from being expensive, research shows that encampment policies do not deter migration – and could cause resentment from local South African citizens.

We believe that we should concentrate on improving the current system – with a better resourced and effectively managed asylum system based on the current Refugees Act of 1998. With the strain of regional economic migrants removed from the asylum system (through the new SADC visas), these improvements would be possible.

  • Life at the Asylum Processing Centre

In general, it seems that asylum seekers will be ‘accommodated’ at the Asylum Processing Centre while their asylum claim is being considered. The White Paper explains that governmental departments and international organisations (UNHCR, Red Cross) will operate at the Processing Centre. Vulnerable asylum seekers will be provided with special services at the Processing Centre. 

It seems that ‘low-risk’ asylum seekers can leave the Processing Centre (it is not clear what constitutes ‘low-risk’) into the care of organisations or community members. It is assumed that asylum-seekers who are granted refugee status will leave the Processing Centre. Asylum seekers will not have the automatic right to work. Their basic needs will be catered for in the processing centre. In exceptional cases, the right to work might be granted to certain asylum seekers. 

As above mentioned, we are deeply worried by the move towards detention centres on the northern borders, which we fear will result in the detention of asylum seekers, which is contrary to their constitutional right to freedom of movement. We are deeply concerned that the Department of Home Affairs will struggle to run a Processing Centre in a remote area away from public scrutiny.

We raised deep concerns around the changes to asylum seekers’ ability to work, as the Watchenuka court case confirmed asylum seekers’ right to work in South Africa, in that it is interwoven with one’s constitutional right to dignity. We advocate for the continuation of asylum seekers’ right to work in South Africa.

Funding the Asylum Processing Centres

It is not clear who will bear the cost of the Asylum Seeking Processing Centres. The White Paper acknowledges that ‘Additional … will be required’ for the Processing Centres, and indicated that Home Affairs is ‘developing a business case’ for the funding of the White Paper’s implementation.

We are concerned that, aside from the implications on human rights, Processing Centres will be an expensive venture. Similar asylum camps elsewhere are expensive to run ($224 dollars per day per person in the US). Aside from running costs, Home Affairs will have to set aside sizeable budgets for litigation on unlawful detention. Home Affairs indicated that the UNHCR will be implicated in supporting costs for changes to the asylum system. However, the UNHCR specifically confirmed they would not be able to fund such programmes in South Africa. In our submissions, we advocated that governmental funds should rather be spent on running the current asylum system properly, reopening RROs and training staff. This, paired with less asylum applicants (due to SADCV visa regime) will result in a functioning asylum system.

  • Exclusion from refugee status

The basis upon which refugees can be excluded will be expanded to include applicants that have failed to apply in safe countries en route to South Africa, often termed ‘third safe countries’.

We find that this cannot be legally implemented in South Africa. The principle of ‘third safe countries’ is not considered legal practice under international law. Under the Refugees Act of South Africa, those who have been granted refugee status in other countries cannot be granted refugee status in South Africa. But those who have merely transited through countries on their way to South Africa cannot be denied status based on their route taken to reach South Africa. Returning people to countries where they might be at risk of harm, or deportation, has been protected against – both by the Refugees Act (Section 2) and by South African caselaw.

  • Changes to refugee status and permanent residency

Those with refugee status will no longer be able to access permanent residency, but they might be able to access the long-term residency visa. As above mentioned, those refugees applying to permanent residency are subject to a thorough process. 

We are of the belief that, for those refugees who can never return home, permanent residency is an appropriate durable solution.

6. Other Provisions of the White Paper

The White Paper also includes provisions, to which our submissions did not reply. This included better managing ties with South African expatriates, and improved integration systems for international migrants in South Africa (such as legal advice desks). 

For highly skilled migrants from other continents than Africa, the White Paper sets out a points-based system. Skilled migrants will be considered in terms of their skills, investments and qualifications. This will be tied to a critical skills list. Migrants with critical skills will be able to apply for a long-term family residence visa, and international students will be able to access residency after graduation. Where skilled migrants are granted residency, schemes must be deployed to transfer skills to local South Africans, such as through understudy programmes. 

7. Children and the White Paper

Both the Green and White Papers on International Migration fail to mention the specific needs of migrant and refugee children. In response to this, joint submissions were lodged focusing solely on children’s issues. Migrant children have severe trouble accessing documentation options in South Africa. No systems exist to record entry of migrating children and therefore the number of undocumented children in SA is entirely unknown. Children born in South Africa to foreign parents are facing increasing difficulties in accessing birth certificates. 

The White Paper does not mention children specifically (only in the family visa for highly skilled migrants). ‘Vulnerable groups’ will be held in the Asylum Processing Centre, which might include asylum-seeking children. Accordingly, we stress in our submissions that the detention of children should only be used as a last resort and if so, for the shortest possible period of time. This is set down in international and national law. Again, it would seem that Asylum Seeking Processing Centres would therefore be unconstitutional and contrary to international law. We urged, in our submissions, that the White Paper include a special permit for migrant children and ensure that data systems exist to understand the number of children in South Africa, including express provisions to issue birth certificates to all children born in South Africa, regardless of their parents’ nationality. None of these submissions were considered in the White Paper. 

Contact Us

Do you have further questions on the White Paper on International Migration? Please visit www.genderjustice.org.za or www.scalabrini.org.za and get in touch!

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