Representatives of various civil society organisations criticised the White Paper on Citizenship, Immigration and Refugee Protection at a Lawyers for Human Rights roundtable on Monday, describing the draft policy as ‘vague’ and ‘poorly drafted’.
Civil society representatives have slammed the recently published White Paper on Citizenship, Immigration and Refugee Protection as being flawed and poorly drafted. Concerns have been raised about the draft policy’s alleged attempts to “scapegoat” the migrant community in the lead-up to South Africa’s 2024 general elections.
The Department of Home Affairs gazetted the white paper on 10 November, calling for a “complete overhaul” of the migration ¬system in South Africa. The public has until 19 January 2024 to provide comments.
“While in the ordinary course of things, we would… have welcomed the good intention to administer a complete overhaul of frameworks relating to our immigration framework… we look at the white paper and we see it against the backdrop of the sociopolitical context… of the significant surge in deadly xenophobic attacks that have happened since 2008. We also see it in the context of the increasingly anti-migrant sentiment that is being purported by the ANC,” said Nabeelah Mia, head of Penal Reform Programme at Lawyers for Human Rights.
“The white paper itself is an attempt to scapegoat a community who unfortunately do not have the voting power in a bid to win votes, rather than the governing party taking responsibility for its failing governance over the past 28 years, leading to higher rates of inequality and unemployment.”
Mia was speaking at a Lawyers for Human Rights roundtable on Monday. The event provided a platform for civil society stakeholders to discuss the contents of the white paper and its implications for the rights of refugees, citizens and migrants in South Africa.
“The white paper itself, as a policy document, has significant flaws. It was quite vague and shocking in its failure to provide an empirical foundation for its proposed policy reform,” said Mia.
This sentiment was echoed by James Chapman, head of advocacy at the Scalabrini Centre, who described the document as “poorly drafted”, with “sweeping statements” that were not backed by evidence.
“Rather than bringing itself into line with our constitutional jurisprudence that has been built up over the years as it relates to the rights of migrants �` specifically asylum seekers and refugees �` it is proposing to alter the law to prevent court challenges and… that doesn’t match up,” continued Mia.
A long process
The policy framework proposed in the White Paper on Citizenship, Immigration and Refugee Protection is intended to replace three existing national policies:
• The Citizenship Act 88 of 1995;
• The Immigration Act, which is act number 13 of 2002; and
• The Refugees Act 130 of 1998.
“This is not a new situation. Home Affairs has made various attempts to overhaul and harmonise these same pieces of legislation. The difference in this particular situation is that they’ve never tried to introduce one piece of legislation dealing with all of these issues,” said Kaajal Ramjathan-Keogh, Africa director of programmes for the International Commission of Jurists.
Ramjathan-Keogh said there would likely be a long consultation process before the finalisation of the proposed policy, possibly spanning years.
“This white paper has been four years in the making, so we can expect the consultation process to extend for a further period. We can see that Home Affairs would like it to be a very short consultation process based on the very short period of time they’ve given us to make submissions but we anticipate that the final bill will be many years away and potentially will look very different to the current proposals,” she said.
With regard to refugee protection measures, the white paper proposes that South Africa review and withdraw from the 1951 United Nations (UN) Convention Relating to the Status of Refugees and the 1967 UN Protocol relating to the Status of Refugees, with the aim of rejoining these with reservations allowing for the limitation of refugees’ socioeconomic rights.
It further proposes that sections of the Citizenship Act should be reviewed, including those relating to citizenship by naturalisation, and that the Births and Deaths Registration Act be repealed in its entirety. The draft policy suggests that a register of all people granted citizenship by naturalisation should be kept by the Minister of Home Affairs.
Some recommended changes in terms of the immigration framework are that the Border Management Authority Act should be reviewed to align it with the new immigration and citizenship policy framework; and that the powers of immigration officers and the Inspectorate for Immigration Services should be strengthened.
False claims around citizenship issues
In order to become a South African citizen, the current legislation requires that a person must have a South African parent, according to Thandeka Chauke, head of the Statelessness Project at Lawyers for Human Rights.
There are exceptions to this, with processes that allow people to pursue citizenship if they would otherwise be stateless or when they are a child born to permanent residents in the country. There is also a pathway to citizenship by naturalisation for children who are born to non-South Africans, according to Chauke.
“The one thing [the white paper] has said is a claim that the current citizenship law is creating an easy pathway to South African citizenship for refugees and migrants, and therefore [it] is proposing a more cautious approach to citizenship… It says in the white paper that the requirements for citizenship by naturalisation… must be more stringent,” said Chauke, adding that the rationale behind this proposal was that the government needed to be protected from financial strain on its limited resources.
However, the claim that the pathway to citizenship by naturalisation was too easy was “simply false”, she continued.
Chauke referenced a recent article co-written by Loren Landau, co-director of the Wits-Oxford Mobility Governance Lab at the University of the Witwatersrand. The article stated that based on the information in the white paper, 150,997 people in South Africa have been granted citizenship by naturalisation since the 2002 Immigration Act.
“That figure only represents 0.2% of the population. So, the white paper does paint a false picture… that there’s so many non-South Africans that are accessing citizenship through naturalisation,” said Chauke.
She argued that safeguards already existed to prevent the abuse of processes for gaining citizenship, but that these were not laid out in the white paper.
“What we’ve now seen since 1995 is a slow and steady move to restrict access to that citizenship. While the white paper itself doesn’t… come right out and say what it intends to do, I think when we track that and look at the patterns of Home Affairs’ approach to interpretation of the citizenship law and its failure to effectively implement the laws, we can preempt what is going to come in the bill,” she said.
Three people, one of them being a pastor, have been found guilty of credit card fraud in which Absa Bank suffered a loss of R1 million.
The National Prosecuting Authority (NPA) said the trio were convicted in the Eastern Cape High Court on various charges.
The accused are 30-year-old Pakistani national, Muhammad Afzal Yaseen, 46-year-old pastor, Khaya Honeman Nocanda, and former Absa manager of the Middelburg branch, Mandisa Mirriam Ndletyana, 33.
NPA provincial spokesperson, Luxolo Tyali said the three accused were part of an initial seven-member syndicate that was initially indicted on 255 counts.
“This involved an elaborate scheme involving the fraudulent acquisition of credit cards from the Middelburg branch of Absa Bank in the period between August 2019 to December 2019,” explained Tyali.
In court this week, the NPA said Yaseen was convicted of participating in the affairs of an enterprise, through a pattern of racketeering activity, 17 counts of trafficking in persons, 49 counts of fraud and 14 counts of theft.
Nocanda was found guilty of managing the operations of an enterprise in contravention of the Prevention of Organised Crime Act, as well as participating in the affairs of the enterprise through a pattern of racketeering, eight counts of fraud, four theft charges, two counts of money laundering and four of acquisition, possession or use of proceeds of unlawful activities.
Ndletyana was found guilty of participating in the affairs of an enterprise through a pattern of racketeering and three counts of fraud.
Tyali said before the commencement of the trial, one of the accused died and a further two Pakistani nationals, who were out on bail, absconded “presumably back to their country of origin”.
“Prosecution also had to be stopped against one former bank employee due to the stroke she suffered which prevented her from continuing with her defence.”
In explaining the case, Tyali said Yaseen and his accomplices were part of an enterprise whose objective was to defraud Absa Bank by securing credit cards on a false and fraudulent basis in the names of third parties whom they trafficked from the Beaufort West in the Western Cape to Graaff-Reinet in the Eastern Cape.
“The more than 27 victims were transported under pretences of there being employment for them in Graaff-Reinet, ostensibly at a business owned by another Pakistani national,” Tyali said.
“The victims were misled into believing that they needed to open bank accounts at the Middelburg branch of Absa Bank into which their future salary payments would be made.
“They were sent to Beyers Naude Municipality offices where they were incited to obtain false proof of residence documents.”
Tyali said the victims were given false salary advice slips and then taken to Middelburg Absa Bank to apply for credit cards.
“Upon favourable outcomes of the said credit applications, limits of which ranged between R10,000 and R35,000 per person were granted,” Tyali said.
“Yaseen and members of the enterprise would take control of the cards and would proceed to empty the relevant loan accounts, by way of incremental cash withdrawals.
“The victims would be compensated with small amounts and transported back to Beaufort West, still jobless.”
Nocanda, who managed the Middelburg leg of the enterprise, deceived members of his church into believing that he was able to assist them in improving their socio-economic circumstances.
“With the assistance of Ndletyana and the other bank official, he used the same false documentation as Yaseen to secure credit cards from the same bank branch.”
Tyali said once the credit cards were approved, the pastor took control of them.
“The victims were offered a choice of any item in the store, up to the value of R5,000 per person,” Tyali said.
“Nocanda would then pay for these items with the proceeds of the fraudulent activity, thus laundering the money through the business of the enterprise. The members of the enterprise would share the remaining spoils among themselves.”
According to the NPA, the syndicate was exposed after a Pakistani national alerted the Absa Fraud Hotline.
“This person further risked his life by even testifying in court on behalf of the State.”
Sentencing is expected in January.
It is further alleged that during the initial stages of the trial, Nocanda, while still out on bail, allegedly attempted to have the investigating officer as well as several witnesses murdered by approaching a traditional healer and enlisting hitmen to commit the murder.
“The plan failed and his bail was withdrawn. His case relating to the attempted murder has been remanded for trial to commence in 2024.”
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Scientists Josie and Joan Ferrer Obiol says their dream of returning to the UK has been turned upside down
Couples planning a new life in the UK have been left heartbroken by changes restricting who can apply to live here.
From April 2024, British citizens or people already settled in the UK will need to show they earn £38,700 before their overseas partner can live here with them - a sharp jump from the current threshold of £18,600.
They also still need to show they are in a marriage or civil partnership when they apply for a family visa, intend to be within six months, or that they have been living together for at least two years.
Ministers say the increased income threshold will help cut immigration levels, which have reached record highs in recent years, and ensure families can support themselves.
Lee, 24, from Belfast, told BBC News: `This policy means that the girl I want to marry, the girl I love...I cannot live with her and it`s destroyed me.`
He had planned to propose to his girlfriend Sarah, who lives in Malaysia, in the coming months. They met in Leeds three years ago, where he was studying engineering and she was studying law.
Lee was planning to pop the question in February next year
The couple were planning a new chapter together in the UK, but Lee said their plans for a family life are `basically destroyed by this`.
Lee earns £26,000 as a researcher in Belfast, and said his chances of earning much more than that at his age and experience level are remote.
He continued: `I just hate this, all this planning we`ve had and it`s just now all crashing down. Now basically if I want to be with someone I love, I can`t be in this country anymore.
`My mind has kind of went everywhere, to some very dark places I`ll be honest.`
British citizen Josie lives with her Italian husband in Ancona, Italy. The couple - both scientists - married in December 2020 and were planning on moving to the UK to settle.
But Josie said the prospect of earning £38,700 as a lab assistant at a British university is highly unlikely, with going-rate salaries routinely below that level.
Asked what her family`s plan was now, the 33-year-old said: `I don`t know, not come back? That would break my mum`s heart. I don`t know, I really don`t know.
`Basically it`s forcing us into a position that will make it very, very difficult - if not impossible - to come to the UK.`
Josie says the new threshold is a `crazy` amount
Cam, 28, told the BBC how he is already looking for a new home in London where his American wife can come and join him after four years of long-distance relationship.
They were planning to apply for a family visa in March, by which time Cam would have been in his new job long enough to show he has a stable income - but with the new threshold due to come into force from April, they are facing uncertainty over whether their application will make it through in time.
He told BBC News: `There`s a huge amount of anxiety. This is going to cause a lot of hurt and pain to a lot of people.`
On Tuesday, Rishi Sunak`s spokesman said the new minimum threshold could be disapplied in `exceptional circumstances where there would be unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member`.
Personal savings and benefits can also be taken into consideration when applicants have to demonstrate how they would be able to support their family, No 10 said.
The government argues the new £38,700 threshold - which is also being introduced as a minimum salary for many migrants seeking work visas - brings it into line with average earnings.
According to the Office of National Statistics, median gross annual earnings for full-time employees in the UK were £34,963 in April 2023.
The change to family visas is expected by the government to reduce net migration by 10,000 a year. Family visas accounted for a net migration of 39,000 in the 12 months up to June 2023.
Overall net migration for the same period was 672,000, a number the government is trying to cut by 300,000 with its wider reforms to legal immigration.
Dr Madeleine Sumption, director of the University of Oxford-based Migration Observatory, said the change will disproportionately hit those who are already less likely to be on higher wages.
She said: `The largest impacts will fall on lower income British citizens, and particularly women and younger people who tend to earn lower wages.
`The income threshold will also affect people more if they live outside of London and the South East, in areas of the country where earnings are lower.`
One of them is Katie, a 25-year-old supermarket worker from Lincoln, who was `crying all night` when the change was announced.
Katie and Quinlan will at least be reunited over Christmas - just are unsure what the future holds
In 2020, she met Quinlan, from Indiana, US, on an online dating app. The pair got married in July 2023 and plans were under way for him to relocate to the UK.
As a supermarket worker, Katie earns £19,000 a year, including overtime pay - less than half of the new salary threshold.
She told the BBC: `Everything we were planning for ages has just gone down the drain. We finally are stable enough to start doing more hours to get the amount needed and then it practically jumps up by 50%.`
The couple`s next steps are not certain. She continued: `To stay here or go there. We shouldn`t have to choose something like this. It`s cruel.`
Ruby and Furkan are in a similar position. When they met on holiday in Turkey in the summer of 2021, she thought it was `a holiday romance - I didn`t expect anything more to come of it`.
Fast forward two-and-a-half years and the pair are newly married, but forced to live apart.
The 31-year-old from Plymouth was self-employed, but decided she would stand a better chance of demonstrating she had a steady income to support her husband`s visa application by taking a job as a veterinary receptionist, and now earns £23,000 a year.
But the changes announced this week have upended their plans completely, and they are still digesting what it means.
Ruby said: `I woke up this morning and saw the news posted on Facebook. I was devastated. I thought that surely there is no way they have hiked it up that amount.`
Starting to cry, she told the BBC: `I can`t believe I have revolved my life around this and then they change the rules after 11 years. Now I just have to hope we can be approved before April.
`If that doesn`t happen, there is no option but for me to move to Turkey. That is not the end of the world as it is a beautiful country but I would like it to be my decision, not Rishi Sunak`s.`