Africa: Closing the Door - South Africa's Draconian Immigration Reforms
By James Hamill
CRITICS of democratic South Africa have long argued that the country maintains a Janus face toward the rest of the African continent. On one level it sees its future as inextricably bound up with that of the continent and it considers the promotion of stability, prosperity and conflict resolution in Africa as central pillars of its foreign policy. Yet on another level South Africa is viewed by its critics in Africa as a state that draws upon the language of interdependence and cooperation while ruthlessly pursuing its own narrow interests, often with scant regard for African sensitivities.
This ongoing debate about South Africa's role in Africa - and indeed the country's "African-ness"- has been captured in microcosm by the changes introduced in May 2014 to South Africa's immigration regime that threaten to disadvantage Africans seeking to enter or remain in South Africa. These changes flow from the privileging of a narrow South African nationalism at the expense of the more idealistic pan-Africanist ideology supposedly informing South Africa's public policy. They also risk reinforcing negative characterizations and stereotypes of Africans to the north as "aliens," and threaten not only to keep new migrants out, but also potentially to endanger those already in.
Such a public discourse driven by fear and suspicion of outsiders rests uneasily next to South Africa's own African renaissance rhetoric, and it also risks fanning the flames of xenophobia, which in 2008 caused widespread death, destruction and displacement for African migrants in South Africa and had a damaging impact on the country's international image and standing. At the same time, it is important to acknowledge the very real dilemmas confronting the South African government as it seeks to achieve a balance between meeting its obligations to Africa and its need to address the urgent socio-economic needs of South Africans.
Unrestricted migration in a region of such vast economic disparities can only mean a further flow of people into South Africa, the continent's most sophisticated economy, which will in turn place greater pressure on the country's stretched resources and aggravate an already catastrophic unemployment crisis among South Africans. Thus a reasonable argument could be made that it is actually unrestricted migration that will fuel xenophobia, as South Africans find themselves undercut in the job market and competing with newcomers - both legal and illegal- for housing and access to services. Against a backdrop of chronic joblessness, poverty and inequality, it becomes much more difficult to advance the rational argument that migrants' enterprise and energy is a net gain for South Africa.
With that in mind, it is useful to assess the nature of the changes to South Africa's immigration regulations and consider their potential blowback effect in two main areas: first, the impact on African nationals and South Africa's broader reputation in Africa; and second, the negative impact upon South Africa's business and foreign investment sectors in general and the tourism sector in particular. The cumulative impact of these failings is sufficiently serious as to raise questions about the government's rationale for the changes, which seem particularly misguided in terms of extending South African influence or soft power in Africa as well as damaging key growth sectors of the economy. Despite the language of consultation, the policy was initially driven through with minimal input from concerned stakeholders, civil society and groups representing immigrant communities; indeed it has proceeded in the face of their open opposition.
To this extent the policy casts further light on the nature of African National Congress (ANC) rule and the broader deficiencies of a system dominated by a single party that continues to demonstrate high levels of arrogance and self-righteousness, although the ANC's reversal of policy on the status of Zimbabweans in South Africa - and its willingness to postpone until June 2015 the implementation of certain regulations impacting upon the tourism sector - demonstrates that it can be responsive to criticism and pressure. The policy again underscores the need for a more dynamic and competitive political environment in South Africa.
The Changes and Their Rationale
South Africa's new and more stringent immigration regulations were unveiled on May 26, catching many affected parties by surprise and promptly unleashing a wave of protest from business, the opposition Democratic Alliance (DA), immigrants, the airline industry and the tourist sector. The new rules dictate that visas to South Africa must be applied for in person; can only be changed outside the country; cover all permits for visits, work and study; require parents traveling with children under the age of 18 to possess an unabridged birth certificate, in order to deter child trafficking and abduction; require entrepreneurs seeking to start a business in South Africa to commit to ensuring that South Africans comprise at least 60 percent of their workforce; reduce the time period in which asylum-seekers are required to report to a refugee reception office after entering South Africa from 14 to five days; and increase the penalty for overstaying a visa from a small fine to a prohibition from entering the country for a time period proportional to the length of their overstay.
These changes were presented by the government as an essentially technocratic exercise to make the immigration system work in a more orderly, streamlined and effective manner while protecting national security and the economic welfare of South Africans. They would also help regulate the flow of economic migrants, end the abuse of the asylum system and ensure South Africa met its international obligations on the protection of children and counterterrorism.
Despite robust criticism, the government has insisted that the new regulations introduced in May are irreversible, although it has been prepared to enter discussions about the precise mechanics of their implementation. Pretoria also maintains that it is sensitive to any detrimental economic consequences of the new regime, which accounts for an agreement in September to delay implementation of certain regulations until June 2015.
Overall, these changes should not be considered as deliberately malicious in intent, and they address issues that no South African government can afford to ignore. That said, they also reflect a particular government mindset as it approaches these issues, and the consequence is a colder and more punitive climate around the immigration and asylum debate. Although the ubiquitous phrase "the national interest" has been invoked in defence of the regulations, the changes may well prove injurious to the national interest, and in some areas will create more problems than they solve.
Consequently, as noted above, the new regulations have drawn criticism across a wide spectrum of South African opinion, including advocacy groups, businesses, the tourism industry and the leading opposition party. Critics have also pointed out that at no stage were the new regulations published for public comment and feedback.
The Treatment of African Immigrants and South Africa's African Image
The accusation that Africans will be adversely affected by these changes has been rejected by the government in quite bombastic terms. Minister of Home Affairs Malusi Gigaba has said the government "rejects with contempt any suggestion that these regulations are part of an Afrophobic agenda to keep Africans, or any nationality for that matter, out of South Africa." He added that South Africa "values the contribution of fellow Africans from across the continent living in South Africa and that is why we have continued to support the AU and SADC [the Southern African Development Community] initiatives to free human movement but this cannot happen haphazardly...or to the exclusion of security."
While the government cannot be passive when confronted by multiple migration challenges, this was a rather defensive and ritualistic restatement of the South African government's abstract position. In practice, it is clear that more restrictive entry requirements, the requirement to renew visas in home countries, the harsher treatment of asylum-seekers and the more punitive approach to "economic migrants" will bear down most heavily on Africans from countries in the SADC zone as well as countries further north such as Nigeria and Somalia.
In fact, a policy aimed at admitting only people with critical skills will inevitably disadvantage Africans, given the levels of underdevelopment on the continent, even if the "hopeless continent" narrative has more recently been replaced by an "Africa rising" discourse. Indeed, the clampdown may not deter African immigrants from being drawn to South Africa, but it may encourage people to enter and to remain as "illegals" given the bureaucratic hurdles facing seekers of asylum or residence. The government also seeks to make a clear distinction between asylum-seekers and economic migrants, but in a continent still afflicted by conflict, state instability and acute poverty, the demarcation lines between the two may be much more blurred in practice.
The respected South African academic Steven Friedman has warned against a "nightclub bouncer approach to immigration," and such an approach will certainly have adverse political consequences on the rest of the continent, where South Africa will again be viewed as a self-interested actor, long on the rhetoric of African solidarity while pulling up the drawbridge in reality. If African immigrants continue to be subjected to threats and actual violence from ordinary South Africans as well as harassment, arbitrary arrest and deportation by government officials, this catalogue of mistreatment will inevitably become widely publicized in their home countries.
It will then undermine South Africa's idealistic pan-African posture and supposed human rights ethos and contrast with the help extended to South Africans by African states during the apartheid-era liberation struggle. That may prove ruinous to South Africa's image on a continent where its standing has always been problematic in the democratic era, due to its hegemonic status, its privileged position as the "representative of Africa" in a range of international organizations and the predatory behavior of the South African corporate sector as it expands its activities northward.
South Africa can be sensitive to outside criticism, as its treatment of the 250,000 Zimbabweans whose special permits are due to expire in December 2014 has demonstrated. The government had been reluctant to characterize them as refugees, as this would undermine Pretoria's relationship with President Robert Mugabe and his Zanu PF party and would imply that the situation in Zimbabwe is abnormal. The fear among Zimbabwean exiles was that they would be compelled to return home and that the South African government would use the opportunity to substantially scale down the number readmitted.
However, on Aug. 12, Gigaba set out the terms of a new Zimbabwean Special Dispensation permit valid until 2017, which could be applied for by all those whose previous permits had expired on condition that they provide evidence of employment or accredited study. Although this policy change tacitly acknowledges that Zimbabwe remains a dysfunctional state in some respects, it also benefits the Mugabe regime, as it means remittances will continue to flow home to help prevent destitution in Zimbabwe. It also keeps a large pool of natural opposition supporters out of the country.
Response From Big Business and the Tourism Industry
South Africa's tourism sector is currently booming, with the country attracting between 13 million and 14 million visitors in 2013. Tourism contributes roughly $8 billion to GDP and employs 600,000 people, and South Africa places great hopes on the sector for earning foreign exchange and generating jobs. Although it recognizes a DHA obligation to address uncontrolled migration and to deter child trafficking, the industry has been particularly alarmed at the implications of the new regulations and has led the chorus of criticism against them.
The Board of Airline Representatives of South Africa has noted that under these new regulations, South Africa will be the only country in the world requiring children under 18 to be in possession of an unabridged birth certificate when entering, departing or in transit through the country, with airlines forced to refuse travel to those not in possession of the documents. Their estimate is that tourist arrivals could be negatively affected by up to 20 percent, with 536,000 foreign visitors potentially being denied travel and with resulting lost income estimated at over $600 million annually. The emerging markets of China and India may be most seriously affected given the difficulty in reaching embassies or visa centers in such vast countries. Consequently, there are already reports that "Chinese operators are walking away from encouraging, promoting and selling South Africa."
Enver Duminy, the CEO of Cape Town Tourism, has noted the new obstacles to visiting South Africa, saying, "The new regulations put the administrative burden directly on the visitor and are likely to act as a significant barrier to travellers who are spoilt for choice and pinched for time. It is especially damaging to the development of emerging markets where complex visa requirements mean that applications can only be processed in a handful of places." This is rather ironic in view of the vast economic potential that South African membership in the BRICS--the association of large emerging economies that also includes Brazil, Russia, India and China--was designed to tap into.
Given the gloomy backdrop of an underperforming economy with lethargic growth rates in GDP and structurally high unemployment at 25 percent, with youth unemployment considerably higher, anything impeding South African effectiveness in a highly competitive global business environment amounts to a mystifying act of self-sabotage. This intense lobbying prompted a reappraisal by the government, at least in terms of the rollout period of the changes.
Gigaba announced on Sept. 16 that the introduction of the regulation insisting that an unabridged birth certificate be provided for each child entering South Africa, planned for Oct. 1, would be postponed until June 2015. This would give South African embassies more time to raise global awareness of the new regulation, allow parents greater time to secure the appropriate documentation and give the tourist sector more time to prepare, rather than being plunged into poorly understood changes at the start of the South African holiday season.
That said, the government remains fully committed to the changes and sees this announcement merely as a pragmatic response to legitimate concerns. While critics of the minister have offered a qualified welcome to the extension, others have noted that a process of greater consultation in advance of publishing the regulations would have removed the need for this action and produced a more effective outcome in the first instance.
On the broader business front, the regulations are likely to impact negatively upon businesses looking for workers with skills they cannot acquire locally, such as engineering and medicine, and this can only stifle the country's growth potential. The more laborious application process will "almost certainly detract from foreign investors wanting to invest, start businesses and work with South African businessmen," Robbie Ragless, managing director of New World Immigration South Africa, told the Mail & Guardian, as it will simply take too long for a foreigner to get a temporary residence permit, a critical skills visa or an inter-company transfer visa. Companies may then look for a more conducive and accessible investment climate elsewhere.
The government requires businesses to search for suitably qualified South Africans and is keen to develop what Adrian Kitimbo calls a "home grown repository of such skills," but South Africa's desperately underperforming education system is not producing sufficient numbers of skilled personnel. In this situation, foreign nationals play an important role not only in addressing short-term skills deficits, but also in helping to transfer skills to the local workforce, making this over the longer term a positive-sum rather than a zero-sum game.
The South African government cannot be expected to welcome the comparison, but the current immigration debate carries within it some disturbing echoes of apartheid-era discourse. References to insiders and outsiders, legals and illegals, job reservation, the breaking up of families, influx control and the arbitrary power of the state are all too familiar.
Obviously there are major differences. The rule of law means that government action can be scrutinized and found wanting by the courts and advocacy groups, and that civil society and a free media can mobilize opposition and press for changes. South Africa may be a democracy dominated by a single party, but it is still a democracy.
The government now finds itself being pulled in different directions by different constituencies, and in this situation policy coherence and clarity are the inevitable casualties. A draconian policy will alienate the rest of Africa and reinforce the belief that South Africa considers itself an exceptional state, detached from the continent and unwilling to share in its struggles. Moreover, a hard-line immigration policy, which frequently casts doubt on the legitimacy of foreigners' status and presents them as a problem, risks exposing migrants to further xenophobic violence in the informal settlements and townships where they live. At the same time, a more liberal policy risks exposing the South African unemployed to competition for jobs and may see South African workers undercut by migrants, thus alienating core domestic constituencies and exacerbating social pressures.
This is highly treacherous terrain for the ANC, which is under enormous pressure to improve the material conditions of its support base, and achieving a judicious balance here will require very sophisticated levels of statecraft. As Pretoria walks that tightrope, it should recall that reform processes are often riddled with contradictions and have a plethora of unintended consequences: another echo from the apartheid era.
James Hamill has been a lecturer in the Department of Politics & International Relations, University of Leicester, U.K., since 1991. He has a long-standing research interest in South African politics, particularly in the country's post-apartheid development, and is a frequent visitor to the country.
This article was originally published by World Politics Review (www.worldpoliticsreview.com)
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