FIPSA
Forum of Immigration Practitioners of South Africa
(Voluntary Association)
Submission to the Parliamentary Portfolio Committee on Home Affairs
in Respect of the Immigration amendment Bill (B32-2010)
The Chairperson
Portfolio Committee on Home Affairs
Per Committee Secretary: Mr Eddie Mathonsi
Dear Ms Maunye
We wish to thank you for the opportunity to submit to the committee our comments on the proposed Immigration Amendment Bill, which is a piece of legislation that is critically important to Immigration Practitioners country-wide as well as to their clients.
FIPSA is a voluntary association that was established by a group of Immigration Practitioners after the dissolution of the Association of Immigration Practitioners of South Africa (AIPSA) and with the intention of joining forces in monitoring and improving the industry’s service standards and image, in its dialogue with the Department of Home Affairs and other third parties, as well as in networking with and amongst each other.
Our membership of approximately 100 registered Immigration Practitioners from all over South Africa represent thousands of foreigners working, studying, conducting businesses or retiring in South Africa, as well as South African and international companies employing foreign staff and South Africans with foreign partners, children or other relatives.
We hope that our combined professional knowledge, our grassroots experience through daily interactions with our clients, as well as our historic memory of immigration processes in South Africa will assist the committee in its assessment of the Bill. We are available at any time for any further questions that may exist or consultations that may be deemed to be of value to the committee.
We wish to make a presentation before the committee during the days 25-27 January 2011 set aside for this purpose and we await confirmation of our appointment to do this.
Please could the Secretary contact me on 021-419-0934 / 082 499 4535 or email to make this arrangement.
Yours sincerely
Leon Isaacson Julia Willand
Chairman Vice Chairperson
Executive Summary
Introduction
While some of the changes in the new immigration bill (B32-2010), introduced to Parliament on 1 October, 2010, have been expected for some time, the Forum of Immigration Practitioners South Africa (FIPSA) believes that the proposed legislation would be impractical, would violate the Constitution and could destroy jobs at a time when the policy of the Government is focused on saving and creating jobs.
The bill is Home Affairs’ first attempt to deal with ongoing problems within its permitting department, which handles all work, study, business, retirement and related permits. However, it does not take into account that Home Affairs has huge capacity problems and backlogs, and addresses only the basic functions of the permitting system.
These changes will add significantly to the current operational and processing problems which the Department is experiencing as announced by the Minister and the DG, which are common knowledge.
The department currently has a backlog of nine months for processing normal work permit applications, which by law should be handled within 30 days. There have been changes in recent months as the DHA has created and filled new staff posts. The current undertaking by the DHA is that the backlog will be cleared by the end of January 2011.
Right of representation
One of the changes in the new bill is that Section 46, which defines which professions may legally assist applicants – namely, registered practitioners, advocates and attorneys – will be repealed. This would have serious consequences, should the draft bill be passed, as the applicant’s right to representation in immigration matters – a right entrenched in the Constitution – would be removed.
The related advisory professions would also lose their current recognition and right to do business in this field, and jobs would be lost in the economy. The repealing of Section 46 would result in an unregulated industry in which anyone would be able to advise applicants, causing further problems in a sector which we believe needs increased regulation.
Personal applications
The bill also requires that all permit applications should be submitted in person at a Home Affairs office or an embassy overseas, although couriered applications have been acceptable in the past. We do not believe that this is an insurmountable problem where verification of documents and identities may be required, but this does not require that Practitioners be excluded where they hold legal power of attorney to represent the applicant/s.
Business visas
In addition, the draft Bill seeks to prescribe the investment categories for which business visas may be issued. Home Affairs from time to time will have to publish regulations defining sectors of the economy which are “in the national interest”,relating to this matter. This will require proper and thorough research to be done with regular updates to these lists. This goes against International Best Practice which allows individuals above a certain investment threshold to invest in a sector of their own choice, thereby encouraging Entrepreneurs with their own capital to invest and create jobs.
Critical skills
Another proposal is to replace the existing Exceptional Skills permit with a new permit called the Critical Skills permit. Meeting the requirements for this new visa may present difficulties, as a critical skill – unlike an exceptional skill - is not regarded, in normal terminology, as a stand-alone skill or qualification. It is a set of skills identified by human resource and labour analysts as being over and above the normal qualifications, which provides the individual with the ability to analyze, lead teams, and work with new technologies.
This proposed amendment is perhaps intended to address the country’s skills shortages, which should be met through a more efficient quota system. The current quota list, which should have been published in May, 2010, is not yet available.
Extensions to permits
The process to change the status and conditions of a permit – for example, to extend it, or to change from a study permit to a work permit – is currently well-established and may be undertaken while the person is in SA, provided they meet certain criteria. The draft bill proposes that this process should be escalated to ministerial level and will be subject to as yet undefined criteria. We believes that loading operational matters of this kind onto the Minister’s office is ill-advised, as it is likely to lead to further problems and delays. Currently Ministerial decisions of this kind take 6-18 months to finalise.
Corporate work permits
Intra-company and corporate work permits would be subject to a prescribed list ofrequirements that have not yet been made public. The department would require new and different resources to implement this proposal, as a dynamic system with research capacity and properly researched information would be required to make timeous and informed decisions.
The draft Bill, on one hand, assumes too much in respect of the proposed changes, while on the other it does not go far enough in that no provision has been made for unhappy applicants to be heard by an outside, objective party, such as a court or judicially-trained ombudsman. Having recourse to an outside party or structure would restore confidence in South Africa in investors and skilled individuals, who would feel they were coming to a country which welcomed them and therefore took the trouble to put an efficient permitting department in place.
Impact on the Economy
Overall, we are concerned with the impact of these changes on economy at a time when Government is trying to preserve and create jobs and encourage skilled individuals and investor to come into SA and contribute to this process. In terms of skills required by the economy, the HRDS-SA Strategy unveiled by the Dept of Higher Education (attached) refers to a huge amount of work which has to be undertaken over the next 3-5 years to have a proper assessment system developed so that skills shortages are quantified and then shortages addresses scientifically.
In terms of investment we compete internationally against al other countries and part of the assessment process of our competitive standing in the area of legislation and bureaucracy. We need to continually look at ways to improve these and other areas as we are currently losing our position of 36th in world rankings on the World Bank competitiveness report.
Consultation
It is common cause that there has been no consultation on these amendments and the tasks of consultation now falls to Parliament, where it should in fact be undertaken by the DHA.
Constitutionality
It is well established in law that the freedom to exercise the right to economic activity is entrenched in the Constitution, as is the right to represent an applicant where the relevant power of attorney, currently prescribed in the regulations, is utilized. The courts have recently clarified this in the case of Regiserve vs The Minister of Home Affairs (attached).This case also refers to the DHA’s preference for a regulated industry body as opposed to less or no regulation, which will be the case if Section 46 is repealed.
Other legislation: as per the attached Labour Bills it can be noted that other legislation is being considered by the DOL which will duplicate the functions allocated to Home Affairs by the Constitution. These pieces of Legislation need to be synchronized and harmonized to avoid conflicts and duplications.
Attachments: For ease of reference we attach the following documents:
1)Regiserve vs Minister of Home Affairs
2)HRDSA-3 (2011 version of policy document issued by DHED)
3) Gazette Extract—Labour Bills 2010
Please find below further detail on the points of concern:
1)Removal of section 46, which gives permission to Immigration Practitioners, Attorneys and Advocates to represent applicants before the Department of Home Affairs in immigration matters:
a)As an industry, we want to be regulated by Home Affairs, as this significantly adds to the integrity of the profession by enabling the monitoring of practitioners and the exclusion of unscrupulous and unethical individuals from practising in the profession. This principle has been recognized by all major immigration destinations such as the UK, Canada, Australia, the USwho all regulate immigration consultants in law.
b)History: Between 2002 and 2005, Immigration Practitioners (in the following “Practitioners”) were strongly regulated. Membership in a statutory industry association (“AIPSA”) was compulsory, and this external body was designed to exercise extensive control over the industry that was comparable to that of the Law Society over attorneys. With the Immigration Amendment Act, 2004 and without any prior consultation with the industry, the compulsory membership was removed and the control over the industry was returned to the Department. However, by its own admission in our numerous conversations with senior officials, the Department has not had the capacity to exercise its regulatory powers sufficiently and appropriately. The Immigration Amendment Bill (B32-2010) (in the following “the Bill”) seeks to remove section 46, which establishes Practitioners as a recognized profession. In effect and without any consultation with the industry, our profession will be de-established.
c)Consultation: As the de-establishment of our profession has enormous implications for us and our clients, we submit that proper consultation should take place so that the best solution for all can be found. We have a range of suggestions for alternative solutions that will address what we have been told are the Department’s concerns regarding the industry. For instance, we are open to regulating ourselves, but would need sufficient time to establish the appropriate mechanisms, as well as official recognition by the Department to ensure that we have control over individuals who would otherwise simply choose not to submit to our rules and codes of conduct.
The Bill includes major policy shifts, and seeing that no consultation took place around its drafting, the responsibility for extensive consultation has been placed on parliament with the risk of substantial changes being required yet again. Since it is very difficult for parliament to take a decision on these substantial policy shifts, we propose that the Minister be asked to consult stakeholders and present a fresh draft to parliament thereafter.
d)Claim of corruption: We cannot rule out the possibility that there are certain Practitioners who practise unethically and unscrupulously and in violation of the Practitioners’ Code of Conduct. However, many of our members have received complaints from their clients in respect of individuals who are NOT registered Practitioners, but illegally practising immigration law, often purporting to be attorneys or Practitioners. Further, we have only heard of about three Practitioner registrations that were ever withdrawn due to malpractice. We are therefore not aware that registered Practitioners contribute to the scourge of corruption in any significant way and do not agree with such a claim. Therefore, if this claim is the reason for removing section 46 from the Immigration Act, we would like to be presented with relevant proof. Rooting out corruption within the immigration system and specifically amongst Practitioners is in our own interest because it will improve the profession’s standing and image. We therefore offer the Department our unconditional and full assistance in this regard.
e)Risks: We fear that the removal of section 46 will have the unintended consequence of legitimizing corrupt and unethical “consultants”. Without a need for consultants to register with the Department and no regulation of the industry, the door is left open for unscrupulous individuals to act freely and without control. Without any formal and provable registration, foreigners and local employers have no tools to differentiate bona fide Practitioners from illegitimate ones, which puts them at risk of being exploited and defrauded. We are concerned that a rise in cases of malpractice, fraud and exploitation of foreigners will be harmful to South Africa’s reputation.
f)Capacity: If applicants are not represented by Practitioners anymore, but forced to deal with Home Affairs directly, the Department will have to communicate with and respond to thousands of individual applicants and companies who all have similar questions and queries. There exists an enormous need for advice in the very complex and ever-changing field of immigration. The tens of thousands of hours spent by Practitioners in consultation with their clients every month would – if Practitioners were done away with - have to be absorbed by government, which will put a huge load on public resources. Further, dealing with Practitioners is considerably more efficient than dealing with laypeople, as we have expert knowledge of the immigration laws and processes. Practitioners can disseminate information to their colleagues and clients, thereby ensuring that procedural and policy changes are complied with and that the system runs smoothly. Immigration is a very complex field and it would take huge amounts of public funds to gear up a call centre to manage all enquiries sufficiently. A lack of proper and sound advice will lead to inappropriate applications, negative decisions and a flood of appeals and/or court cases, slowing down the process, clogging up the system, and making it so unpredictable that individuals and companies will be deterred from coming to South Africa.We can play an important role in the system and relieve government of much of this burden. A strong cooperation and lively exchange between the Department and Practitioners can help to build a top-class immigration system without outrageous additional expenditure.
g)Regulation of other industries: At this very moment, government is in the process of introducing the regulation of industries that are comparable to that of Immigration Practitioners. There is a trend in professional fields towards more regulation such as Tax Practitioners to be registered with SARS, funeral undertakers for the registration of deaths, financial services industry. This trend appears to contradict the Bill’s intention.
2)Application in person – The proposed section 10(2) will require all applications to be submitted by the applicant in person. The current system allows for applications to be lodged with the Department by mail/courier or through attorneys, advocates and immigration practitioners.
a)Frustrating Experience for Foreign Applicants: From our own experience and that of our staff and clients, we can report that it is a common occurance for counter staff at offices of Home Affairs and at foreign missions to give poor or incomplete advice. We as Practitioners can tell numerous stories of incidents where we were given wrong information by Home Affairs officials (be it because they were still in training, due to language barriers or other reasons). We and our staff have personally witnessed members of the public bursting into tears at Home Affairs offices out of frustration and helplessness. Many clients have reported to us their frustrations with Home Affairs and come to us for assistance due to their negative experiences (e.g. repeatedly standing in lines for many hours only to be turned away yet again) there. Clearly, this is not a situation that government wants as it is committed to the principles of Batho Pele as well as to offering an efficient, economical and effective service, and to transparency through timely, accessible and accurate information as called for in section 195(1) of the Constitution. Poor advice over the counter leads to inappropriate and incomplete applications, rejections, appeals, a clogging up of the process, a waste of government resources and a deterrent of foreign skills, investment and other much-needed benefits to South Africa. Practitioners have been shouldering the negative and tedious parts of the immigration process for their clients in order to ensure that the latter’s experience of coming to South Africa is a positive one. We ask that we be allowed to continue this work in the interest of foreign investment and skills coming into the country.