Motsoaledi outlines changes to ‘colonial era legislation’ on citizenship and immigration

Home Affairs Minister Dr Aaron Motsoaledi has said the public has shown great support for the final White Paper on citizenship, immigration and refugee protection which appeared in the Government Gazette on Wednesday.

Briefing the media, he addressed what he saw as a long-overdue need to replace an outdated Citizenship Act, as well as enact proposed changes to existing legislation.

The relevant Government Gazette can be read at the bottom of this article.

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‘Overwhelming responses’

On 10 November last year the department published in the Government Gazette the White Paper on Citizenship, Immigration and Refugee Protection towards a complete overhaul of the immigration system.

The deadline for public comments was extended to 31 January.

“The responses have been overwhelming. Individuals – that is citizens, asylum seekers and refugees – as well as public interest groups, companies, national and local government departments, premiers, research institutes, political parties, International Commission of Jurists, United Nations High Commission of Refugees, International Organisation for Migration, United Nations Children’s Fund (Unicef) and many others made their voices heard and made constructive comments,” Motsoaledi said.

Public hearings were conducted by the department in all nine provinces, and the minister did radio and TV interviews on the White Paper.

“The outcome of the engagements and public comments is that the policy position adopted in the White Paper enjoys widespread support.

“Only a handful of public interest groups are opposed to selected policy positions,” he said.

These include:

• The withdrawal of the 1951 Refugee Convention;
• The 1967 Protocol;

Furthermore, Motsoaledi said the department “acceded to them with reservations” the proposed repeal of section 43 of the South African Citizenship Act and the First Safe Country Principle.

“The department of Home Affairs carefully and duly considered all the oral and written submissions. This final white paper is a product of the third robust engagements.”

He said cabinet approved this final white paper on 10 April, and it has been published in the Government Gazette on Wednesday 17 April.

Citizenship Act needed reworking

“Conflicts, armed violence, disasters, pandemics, climate change, seeking better business and work opportunities, and other factors, cause people to leave their countries of origin.

“Public comments on the White Paper reaffirmed the urgent need to adopt effective policy measures and legislative interventions dealing with migration in South Africa.”

Motsoaledi said the country has existing legislation dealing with citizenship, migration and refugee protection, including the Citizenship Act (1995), the Immigration Act (2002) and the Refugee Act (1998).

However, Motsoaledi called the Citizenship Act a “relic of the colonial era and a replica of the 1949 Citizenship Act”.

“There are people who seem to take offence when we refer to this fact, that we actually hate the fact that our Citizenship Act passed in 1995 after democracy resembles that which was passed by 1949 by the British Government when South Africa was a union.”

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He said these existing legislations clashed in practice and piecemeal amendments were made without any policy or framework in place.

“The White Paper must make radical proposals regarding citizenship.

“Section 43 of the Citizenship Act is required to be reviewed together with other sections including those relating to Citizenship by naturalisation.”

This includes terminology such as ‘people of a sound mind’, which Motsoaledi said had no place in our democracy.

“The criteria for granting any forms of citizenship must be strictly in accordance with the law.

“A proper register should be kept for all persons granted citizenship by naturalisation. The register must be tabled every year in Parliament by the minister.”

Refugees and asylum seekers

Motsoaledi said most laws taken by countries around the world are more stringent on people entering their borders than South Africa’s.

Still, he said the principle of Pan-Africanism “does not promote illegality” when it comes to crossing borders.

“Asylum seekers were not recognised in South Africa until 1993. During the apartheid regime South Africa did not accede to any international conventions related to the status of refugees and asylum seekers,” Motsoaledi said.

Instead, the government at the time administered refugee status on an ad-hoc basis, mostly to white people from Zimbabwe, Portugal and Mozambique, the minister said.

The Refugee Act of 1998 was sorely needed, and came as the world opened its doors to South Africa.

White Paper’s recommendations on refugees

“The White Paper proposes that the government of the Republic of South Africa must review and/or withdraw from the 1951 Convention and the 1967 Protocol, with a view to accede to them with reservations like many other countries did,” Motsoaledi said.

“All what the South African government intends achieving is to exercise its right granted in article 42 of the 1951 Convention, and article 7 of the 1967 Protocol, and make reservations accordingly.

“The refugee protection and immigration legislation must provide for reservations and exceptions as contained in the 1951 Convention and 1961 OAU Convention, particularly in that South Africa does not have the resources to grant all the socio-economic rights envisaged in the 1951 Convention.”

Combatting the problem of illegal immigrants

While the department has no idea how many illegal immigrants are living in South Africa immigration services report between 15 000 and 20 000 illegal immigrants every year, and the number increases.

The establishment of the Border Management Authority is helping in this regard, but the numerous working and studying visas that are available under the Immigration Act need to be reviewed, the minister said.

“It is an administrative nightmare,” he said, calling them replicas of each other. “The White Paper proposes that that needs to be changed.”

Furthermore, “the introduction of limited duration permanent residence visas will curtail the current difficulties in which individuals, business and even church organisations and others resort to fraudulent means to acquire permanent resident status.”

New bodies that will issue visas will observe strict requirements and the maximum period to issue visas will be shortened.

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The relevant Government Gazette can be read below: