Authored By: Prudence Radebe-Mfene
University of South Africa
1. Introduction
The most commonly cited definition accords with the 1998 Recommendations on Statistics of the International Migration: Any person who changes his/her country of usual residence in which an individual normally spends his daily period to rest (United Nations, 1998). An individual who enters the nation for up to three months is not considered as an immigrant, but rather a visitor, beyond three months, an individual will be termed a short-term immigrant for the next nine months. Only after one year of legal residency in the country the immigrant will be termed a long-term migrant.
South Africa’s immigration context is intrinsically linked with its history. The country’s economic development follows the colonial expansions in the 18th century and the discovery of large amounts of ores in the late 19th century. The role of the legal immigrants can be economic contribution. This article proceeds by discussing legal framework governing immigration, assessing the contributions of legal immigrants to South Africa, analysing the associated legal challenges, and concluding with recommendations.
2.1 Legal Framework
The Immigration Act 13 of 2002 provides the legal admissions, residence and departure of foreign nationals from the Republic of South Africa. It intends to balance broader control, economic development and administrative efficiency. The Act primary objective is to regulate immigrations by establishing rules for entry into South Africa through passports of entry. Temporary residence including work, study, business and visitors passport. Permanent residence for qualifying foreign nationals. The Immigration Act remains the cornerstone of South African Immigration Law because it governs how foreign nationals may visit, work, study, invest in or settle in South Africa while providing mechanisms for enforcement and broader management and it also interacts with other legislation such as the Refugees Act, which separately regulates asylum seekers and recognised refuges.
2.2 Case Law
In a case of Union of Refugee Women v Director of Private Security Industry Regulators Authority 2007 (4) SA 395 (CC)
The Constitutional Court’s decision dismissed the constitutional challenge by majority. The court held the distinction between citizens or permanent residents and other foreign nationals had a rational connection to the legitimate governmental objective of regulating a sensitive industry involving public safety, firearms and positions trust. The court accepted that refugees are particularly vulnerable group but not concluded that the legislation’s exemption mechanism prevented the scheme from being unconstitutional on its face. The court ordered that the refugee applicants be given opportunity to apply for exemptions under section 23(6) and directed the regulatory authority to ensure that applicants understood what information was required for such applications.
2.3 Critical Analysis
Migration to South Africa has for decades been shaped by the need of labour to serve the main labour-intensive industries such as agriculture and mining, mostly as a (temporary)’migrant labour’ while permanent immigration was limited to those meeting the criteria of the governing minority. This so called two-gate policy was based on legislative measures and policies introduced by the national party from the 1948 onwards, although the key principles were introduced even earlier. Employment growth rates from medium to high-skilled occupations are relatively high in South Africa compared to the average growth across all occupational groups and immigrant workers are slightly overspread in many of these occupations. Occupational growth may therefore be considered from the demographic perspective to analyse the relative contribution of immigration in comparison with other groups.
The sectoral distribution of workers is a major determinant of immigrant’s contribution to GDP, over time South Africa’s sectoral shares in terms of both employment and value added demonstrate a steady rise in the weight of the service sector. The analysis also considers the contribution of immigrant workers based on an estimated production function for a period 2001 – 2011 as well as a macroeconomic model for the South African economy. The fiscal impact of immigrants is a recurrent theme in discussions on the costs and benefits of migration. The basic framework for the calculation of the net fiscal and benefits of both native-born and foreign-born population used demonstrate that these benefits are greater for foreign-born workers.
It is evident that the immigrants plays the vital role in South Africa by contributing to the economy of the country they are living in and making means of income legally as they are supposed to by law however the immigrants in South Africa have much higher employment rates than native-born workers. The difference in the employment to population rate between foreign-born and native-born South African workers was almost 25 percent points in 2011. Male rates were higher than female rates but both sexes the foreign employment rates exceeded the commensurate native-born rates. Foreign-born workers are relatively young, as a large share is less than 35 years old. The is no sufficient information to conduct a full assessment of the quality of work performed by immigrants in comparison with native-born workers, however the 2001 and 2011 population census data do suggest that foreign-born workers have become more likely to be in a paid employment as opposed to being self-employed.
Conclusion
The Legal framework demonstrates that while South Africa regulates immigration through the Immigration Act 13 0f 2002 the legal immigrants are protected by the Constitution of South Africa, 1996 therefore that can make a meaningful social and economic contributions within that legal framework moreover the legal immigrant’s plays vital role by contributing positively to the public finance of the country with regards to the fiscal impact including the costs and the benefits of migration. However in this article I have discovered that the native-born are not mostly in the employment fraternity as much as the foreign-born individuals therefore that rises the stress on how could that happen in terms of the employment equity and employment criteria probably affecting the employment recruiting or the lacking of skills for the native-born individuals. The government of the country along with the relevant stakeholders should proceed on providing the skills and equipment for the native-born individuals in order to align and balance the scale of employment between the native-born and the foreign-born in order to avoid conflicts in the country.
Closing statement>the Constitution of South Africa declares that: South Africa belongs to its people and everyone who lives in it.
Biblography
Legislation
The Immigration Act 13 of 2002
Union of Refugee Women v Director of Private Security Industry Regulators Authority 2007 (4) SA 395 (CC)
Books
How Immigrants Contribute to South Africa’s Economy
OECD/LO (2018), How Immigrants Contribute to South Africa’s Economy, OECD Publishing, Paris.
http://dx.doi.org/10.1787/9789264085398-en
Footnote(S):
The Constitution of the Republic South Africa 1996
