Employment and Labour minister Thulas Nxesi says that his department will introduce a new labour migration policy that regulates foreign workers in South Africa.

In a briefing to parliament on Friday (5 March), Nxesi said that the policy would be submitted to president Cyril Ramaphosa’s cabinet for approval soon, and that an official pronouncement would follow.

Nxesi said that the policy would primarily deal with low-skilled workers, with government expecting a ‘big debate’ given the tensions around foreigners in the country.

“We are going to be needing a balancing act – how do we ensure that we do not violate the Constitution in terms of the Bill of Rights and the right of everybody to work?

“There are various international conventions we have signed giving rights to refugees, both legally and illegally. But how do we also respond to the pressure of the mass employment of our people at the lower levels.”

Nxesi said that South African employers deliberately prefer foreign workers as a source of cheap labour, as they are willing to take ‘anything’ for wages.

The minister indicated that a number of interventions were being considered as part of the policy, but confirmed that his department was considering the introduction of quotas that would specify how many foreign workers could be hired in a given sector.

Based on previous comments by Nxesi, the sectors which are likely to be directed impacted by the labour migration policy include:

• The hospitality sector;
• Restaurants;
• Security;
• Farming and agriculture.

Specific jobs such as restaurant waiters and truck drivers are also likely to come under scrutiny as they have previously been identified by the department as having a high concentration of foreign workers.

The Quarterly Labour Force Survey (QLFS) published at the end of February shows that South Africa’s unemployment rate is now 32.5% – its highest point since the survey was started.

The unemployment rate according to the expanded definition of unemployment decreased by 0.5 of a percentage point to 42.6% in Q4 compared to Q3.

The results of the QLFS show that around one million people moved from the ‘not economically active’ segment of the population – which is broadly defined, but includes those who lost work during the Covid-19 lockdown – back into the workforce.

However, the split between those who returned to employment and those who are now classified as unemployed, leans heavily towards the latter.

The number of employed persons increased by 333,000 to 15 million in the fourth quarter of 2020, it said. Meanwhile, the number of unemployed persons increased by 701,000 to 7.2 million compared to the third quarter of 2020.

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CAPE TOWN - Asylum applications could be streamlined with the launch of the Asylum Backlog Project.

It's a joint endeavour by the Home Affairs Department and the UN Refugee Agency.

It aims to eliminate the backlog in South Africa’s asylum system by 2024.

Home Affairs Minister Aaron Motsoaledi said that the Asylum Backlog Project would include hiring more staff to help deal with a backlog.

"We provided a sum of U$9.6 million for this project over a period of four years. They'll also provide technical assistance in the form of training. The money will be used to employ 36 extra lawyers because at the moment there are only three."

Motsoaledi said that when the Refugee Act came into effect in 1998, the country had 11,000 asylum applications and in 2006 it reached 53,000.

"In 2008, it increased fourfold - 207,000 people just arrived and said they're looking for asylum. Now while the system was still shocked, the following year another 223,000 followed, which means there's still 400,000 people within a period of two years. Since that time, the system has never recovered."

He said that they'd still not been able to clear that backlog.

"The number of people now who must be cleared via this backlogs is 163,000 applications."

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UK Primer Minister Boris Johnson has announced a phased plan for  easing England's lockdown.

• International travel is still, however, barred.
• England has, meanwhile, began vaccinations.

British Prime Minister Boris Johnson set out a phased plan on Monday to end England's Covid-19 lockdown, offering a "cautious" approach to try to prevent a return to wholesale restrictions that have hobbled the economy.

International travel from England will be banned until 17 May at the earliest, Johnson said.

In its roadmap for easing restrictions, the government announced a review of travel which will report on April 12 with recommendations about how international travel should resume, while managing the risks f new variants of coronavirus.

Britain is looking at a system of allowing vaccinated individuals to travel more freely internationally, it added.

Johnson, under pressure to allow more freedoms to millions of people stuck at home and offer hope to shuttered businesses, said the first stage would prioritise schools returning on 8 March when only minimal socialising outdoors would be allowed.

The so-called roadmap would then pass through four stages, with five weeks in-between, and the final step, when most restrictions would be lifted, not starting until 21 June at the earliest.

"The threat remains substantial", Johnson told parliament, saying it was crucial the roadmap was cautious but irreversible.

"We're able to take these steps because of the resolve of the British public and the extraordinary success of our NHS (National Health Service) in vaccinating more than 17.5 million people across the UK."

With almost 130,000 fatalities, Britain has suffered the world's fifth-highest official death toll from the pandemic and its $3 trillion economy has seen its biggest crash in over 300 years.

But Johnson said the fast start to the vaccine roll-out plus a sharp fall in infections can now set out a cautious easing of England's tough national lockdown, which started on 5 January.

As the plan unfolds, lawmakers will have a chance to vote on specific steps. Authorities in Scotland, Wales and Northern Ireland, which are responsible for their own public health, will also ease restrictions over the coming months.

*Vaccinations*

A total of 17.7 million people have received their first dose of a Covid-19 vaccine, official data released on Monday showed.

Britain also reported a further 10 641 cases and 178 deaths within 28 days of a positive test.That compares with 9 834 and 215 respectively on Sunday.

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The notification introduces a series of restrictions that dramatically curtails the rights and liberties of OCIs in India.

Narendra Modi at the 2014 edition of Pravasi Divas, a celebratory day to mark the contribution of the overseas Indian community towards the development of India. | AFP

In a stunning development for Overseas Citizens of India, the Ministry of Home Affairs issued a notification on March 4 dramatically altering the compact between OCIs and the Indian state. This notification, which is issued under Section 7B of the Citizenship Act, 1955, supersedes three earlier notifications issued on April 11, 2005, January 5, 2007, and January 5, 2009, which laid down the rights of the OCIs.

Apart from humiliating and illegally classifying OCIs as “foreign nationals”, the new notification introduces a series of new restrictions that dramatically curtails the rights and liberties of OCIs in India. These restrictions include a requirement for OCIs to secure a special permit to undertake “any research”, to undertake any “missionary” or “Tablighi” or “journalistic activities” or to visit any area in India notified as “protected”, “restricted” or “prohibited”.

In addition, the notification now equates OCIs to “foreign nationals” in respect of “all other economic, financial and educational fields” for the purposes of the Foreign Exchange Management Act, 2003 although past circulars by the Reserve Bank of India under FEMA will hold ground. This reverses the position that has held for the last 16 years wherein OCIs were equated to Non-Resident Indians rather than “foreign nationals” for the purposes of their economic, financial and educational rights.

OCIs can however continue to purchase land (other than agricultural land), pursue the profession of medicine, law, architecture and accountancy and seek parity with Indian citizens with regard to airfares and entry fee to monuments and parks. OCIs can also continue to seek enrolment in Indian educational institutions on par with NRIs but not for seats reserved exclusively for Indian citizens.

Judicial defeats

Most of these new restrictions have likely been inspired by the defeats suffered by the government in various cases filed by OCIs before the judiciary. Take for example, the new requirement for OCIs to apply for a special permit to undertake any missionary activities. This restriction has been introduced to undercut a judgment by Justice Vibhu Bakru of the Delhi High Court wherein he came down heavily on the Ministry of Home Affairs for cancelling the OCI card of an American-Indian doctor on the grounds that he was engaged in “evangelical and subversive activities” while offering free medical services to the needy and the poor in Bihar.

In that judgment, Justice Bakru made it clear that there was no restriction preventing OCIs from engaging in religious activities.

Similarly, the restrictions on OCIs competing for seats reserved for Indian citizens is meant to undercut a judgment of the Karnataka High Court by Justices BV Nagarathna and NS Sanjay Gowda declaring that OCI students will be treated as Indian citizens for the purposes of admission to professional courses.

Lastly, the Ministry of Home Affair’s assertion that OCIs are foreign nationals and not Indian citizens is most likely inspired by ongoing litigation before the Delhi High Court wherein an OCI has sought a declaration from the court that OCIs enjoy fundamental rights just like Indian citizens.

The requirement for OCIs to take a special permit to engage in journalistic activities has likely been motivated by right-wing ideologues like Subramaniam Swamy who has been targeting journalists like The Wire’s Siddharth Vardarajan because of their foreign citizenship. There are several other next generation OCIs who work as journalists in India and whose future will now be under a cloud if the Ministry of Home Affairs decides to deny them the required permit to continue working as journalists in India.

Long-term visa programme

This notification by the Ministry of Home Affairs is not surprising. For some time now, the Ministry of Home Affairs has dedicated its efforts to reduce the concept of OCIs to a glorified long-term visa programme rather than implement it as a dual citizenship programme, as was the intent of Parliament when then Home Minister LK Advani piloted the Citizenship (Amendment) Act, 2003, through Parliament.

The “Statement of Objects & Reasons” accompanying this Bill, which lays down the intent of the government at the time of introducing a bill in Parliament and which can legitimately be used by the judiciary to discern the legislative intent, stated the following:

  “Subsequently, the High Level Committee on Indian Diaspora constituted by the Central Government, inter alia, recommended the amendment of this Act to provide for the grant of dual citizenship to persons of Indian origin belonging to certain specified countries. The Central Government has accordingly decided to make provisions for the grant of dual citizenship.”  

Advani in his introductory speech had clarified once again that the entire purpose of the Bill was to introduce dual citizenship for the Indian diaspora. It is therefore disingenuous for the Ministry of Home Affairs to now claim through a recent notification the claim that OCIs are foreign nationals. This argument is all the more absurd when viewed in light of the fact that the phrase OCI literally has the phrase “Indian citizen” in its title.

Lastly, it bears noting that the entire concept of OCIs was brought through the Citizenship Act, 1955, which is a legislation specifically meant to regulate the concept of Indian citizenship. There are separate laws like the Foreigners Act, 1946 and the Foreign Exchange Management Act, 2003, which deal exclusively with foreigners and their rights in India.

The fact that Parliament sought to locate OCIs in the Citizenship Act and not the Foreigners Act or FEMA is sufficient proof that Parliament wanted OCIs to be Indian citizens.

Correct conceptualisation

Rather than declaring OCIs as foreign nationals, the Ministry of Home Affairs should recognise OCIs as a new class of Indian citizens who enjoy a different set of rights from Indian citizens holding Indian passports. The rights to which OCIs are not entitled are mentioned in the Citizenship Act. This list includes the right to hold public office or voting – the idea being that OCIs are excluded entirely from the political sphere of citizenship.

Unfortunately, Parliament delegated to the government of India via Section 7 B of the Citizenship Act, the power to decide the remaining rights of OCIs through notifications. While the legality of such delegation is suspect, there is also no doubt that no government can deprive any class of citizens of their fundamental rights.

To argue against such a basic proposition by declaring an entire class of citizens as foreign nationals, as has been done by the Ministry of Home in this present case, is quite simple wrong in law. Parliament can lay down the criteria for citizenship but once it decides to bestow citizenship on any category of persons, not even Parliament can proceed to deprive that class of citizens of their fundamental rights.

The very idea of fundamental rights in India is that every person is born with these rights and the Constitution merely recognises such rights.

If the Home Ministry fails to withdraw its most recent notification, it may just be the end of India’s short-lived experiment with dual-citizenship. It will be difficult if not impossible for the Narendra Modi government to reclaim the trust of OCIs after this latest notification unless it acts swiftly

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The Department of Home Affairs (DHA) says that it is working with the Council for Scientific and Industrial Research on a biometrics system that is close to being finalised.

Briefing parliament virtually on Wednesday, the department said the biometrics system will form part of an identity management policy that aims secure the identity of a child when about six hours old.  It added that the associated policy will be approved by 2023.

“The documentation of children remains an issue that the department address through various campaigns including the registration of birth within 30 days and late registration of birth,” the DHA said in its presentation.

“There should be no child who is undocumented in this era. The Department of Home Affairs is moving towards a National Identification System, which caters for the registration of all citizens and non-citizens.”

Draft policy 

A draft identity management policy published by the Department of Home Affairs in January 2021 provides additional information on how the National Identification System will work.

“It is currently possible for anyone who has not applied for an ID to successfully claim and use the identity of another person who has also not applied for an ID,” the policy statement said.

It explained that this is possible because the biometrics of South African children are not captured after birth.

“The DHA currently has no way to reliably verify that a child who presents a birth certificate as proof of identity during interactions with the department – for example, when applying for an ID for the first time – is truly the person whose birth the certificate is meant to certify.

“Any child can lay claim to the identity of another child and such instances have been recorded.”

To address these and other issues, the DHA has made the following recommendations:

• Records of persons throughout their lifespan including the capturing of the biometrics of children at birth. Where impossible, the biometrics of a parent must be linked to the birth certificate of a child;

• ID numbers based on parents. Ideally, these numbers should also be linked to their parents’ identity numbers and mother’s biometric data;

• Re-registration of children at five years of age and when possible, the biometrics of a child must be collected at birth.  A combination of different biometric data for children will be considered with options such as the photograph of the ear;

• Recognition of other sex/gender categories on identity documents

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