Consider xenophobia from a different angle.
Xenophobia has been dominating headlines in our media over the last while. It may be worthwhile attempting to highlight a different perspective and take on this topic. It is a given that xenophobic attitudes are reprehensible and cannot be allowed and more so xenophobic attacks on the property, life and limb of foreign nationals.
Three categories of foreign nationals find themselves within the confines of the borders of the Republic of South Africa:
• Legal migrants;
• Asylum seeker and refugees; and
• Illegal and undocumented migrants.
Before embarking on a discourse regarding these three categories, let’s deal with the premise underlying xenophobic attitudes and that is the misguided conception that foreigners “steal” jobs from South Africans and “steal” their women. A further extension to this is that all foreigners are engaged in “criminal activities”.
All of these premises are largely misconceptions and incorrect. We will address this in due course. To deal with these premises, one must look at the background of skills migration within a global village context.
Scarce skills are in short supply within the global village and this has become the trend over the last decade and caused an increase in migration of skills globally. Skilled migrants, in the technical and other spheres, have become a much wanted commodity worldwide and it is not only South Africa suffering from this skills shortage, which can be cured to a certain degree by the importation of such skills.
During the past three decades I have seen the most unbelievable array of skills coming into the country. Employing a South African citizen must always remain a priority and be first prize for any prospective employer. However, where that skill cannot be sourced locally nor produced locally, a bridging measure always has to be the importation of such skills.
Highly skilled individuals from other parts of Africa have steadily migrated to South Africa since the advent of the new South Africa, and one cannot paint them with the brush of “stealing” jobs from South Africans where South Africa simply has not produced sufficient, or any, of the skills concerned. By way of example, one could look at the engineering profession. The comment is however not only restricted to the engineering profession.
Employers have a right to employ the best qualified and the best trained candidates for positions in order to maintain and retain a competitive edge in
business. The controls and checks and balances that come into this scenario are provided for in the Immigration Act 13 of 2002 (as amended) “the Act”.
Stringent requirements exist in this legislation, which requires that a prospective employer must advertise in the national printed media for a position and be able to provide sufficient proof that they were unable to secure the services of a South African citizen or permanent resident for the position. It is generally required that an employment agency should be approached in this regard and, as a further control, the Department of Labour must conduct an investigation to determine, based upon information and documentation provided by the prospective employer, to try and secure the services of a South African citizen or permanent resident for the position. In addition the Department of Labour must also do a salary benchmarking exercise in order to provide proof that the remuneration to be offered to the prospective foreign employee not be less favourable than that which would have been paid to a South African citizen in the position.
It is only after all of these hoops have been jumped through that in fact a job offer can formally be made to the foreign national candidate.
It is then that the application should be submitted to the Department of Home Affairs which in itself will take some time.
It is my belief that, had the South African Immigration Act visa process been on a par with the processes in other countries, this would be sufficient a safeguard.
A further provision is made in the Immigration Act for the creation of a “critical skills visa” in which certain defined professions, trades and occupations are declared by the Minster of Home Affairs, ostensibly in consolation with the Department of Labour, Science and Technology and Trade and Industry, which declare a list of such trades, professions and occupations. In terms of the critical skills visa category, it is not necessary to advertise, and the Department of Labour requirement also falls away. The purpose of this is to attract these skills, trades and occupations into our country to attempt to bridge a critical skills gap.
Again, these checks and balances, in my opinion, are adequate and in line with international best practice.
The above however only deals with the formal labour sector and with those foreign nationals who are on valid and proper work visas. There remains an “informal” sector, which I will deal with shortly which must be viewed in a different light.
The second category relates to Asylum Seekers and Refugees. South Africa is a signatory to all the United Nations conventions on Refugee Affairs and adheres to the protocols flowing therefrom. In addition, there are various African Union Conventions in this regard to which South Africa is also a signatory and must honour and respect such Conventions.
A foreign national who had fled their country of usual residence under the fear or threat of death, torture or persecution as a result of their political, religious beliefs, ethnic origins or sexual orientation may claim asylum from the reception country, in this case South Africa. Once an asylum application has been made and such grounded fear of persecution has been declared, then such foreign national enters the stream of process under the Refugees Act and is given an Asylum Seeker temporary permit. This permit must be extended on an ongoing basis pending the outcome of a final determination of refugee status, whether approved or denied.
Until that final determination takes place, the Asylum Seeker is entitled to work or study and certainly to reside in South Africa pending the outcome of such application. He or she is then free to enter the job market on the strength of the Asylum Seeker Temporary permit.
Once an asylum application has been refused, the applicant would have to return home or leave within the defined period and, in the event of a successful determination of refugee status, would be entitled to remain on in South Africa permanently, with the obvious requirement of extending their Formal Refugee Status on an ongoing basis.
Unfortunately, circumstances in certain countries north of South Africa have been such that there has been a massive influx of foreign nationals seeking
asylum in South Africa. One of the other realities of this situation is that many of these migrants who apply for asylum do not really qualify for such asylum as in reality they are economic refugees. A classical example of this would the influx of Zimbabwean nationals into South Africa.
However, an applicant applying for asylum under the Refugees Act must be duly considered and allowed to process their application for asylum up to the final determination phase.
Statistics and numbers are not readily available but the amount of refugees is huge, given the constant queue that exists at the various refugee reception
centres and the enormous backlog that exists in the processing of such applications.
The third category consists of illegal or “informal” migrants who are simply slipping across our very porous borders into South Africa and absorbing
themselves predominately into urban areas. Perhaps a better definition of this category would be that of “undocumented” migrants.
The Minister of Home Affairs in 2010, in an attempt to try and document these undocumented migrants from Zimbabwe, predominately granted to any Zimbabwean national who was in the country illegally or on fraudulent papers an opportunity to legalise themselves under the Zimbabwe Dispensation Project “ZDP” which was followed at the end of last year by the renewing and extension of the project to the Zimbabwean Special Project ‘ZSP’ which legalised them for a further four-year period.
It is not known whether or how successful this project was in bringing these persons into the realms of being documented migrants as the figures declared by the Minister of Home Affairs seem to indicate 250,000 plus migrants availed themselves of this opportunity. The Institute for Security Studies (ISS) was quoted in the media as saying that there were potentially more than two million Zimbabweans alone who have not availed themselves of the process. One has to factor in those who come from other sub-Saharan African countries and further north.
It is almost impossible to gauge those numbers. The magnitude of this situation therefore becomes more apparent. Another factor which must be brought into the equation relates to the high levels of unemployment in South Africa, the current economic situation, the recessive tendencies of a lot of Western economies and also the government to come up with effective strategies and programmes to place this problem into a proper perspective.
One of the unfortunate realities is that crime is rampant in South Africa, but to accuse foreign nationals of being the only perpetrators would be doing an injustice to all. It carries the premise misguidedly that South Africans are therefore squeaky clean and that there are no South African criminals in this situation.
Xenophobia is not unique to South Africa and is regrettably and unfortunately a mind-set which has permeated so many of the darkest periods in world history.
The only solution to sorting the problem out is to effectively deal with strategies to educate our masses, to teach and preach tolerance to them, to speak out publicly against xenophobia and to begin this process within schools, tertiary education institutions, cities, townships and informal settlements alike.
The previous waves of xenophobic attacks and intolerance, together with the current, cannot be tolerated, must be condemned and constructive and proactive action must be taken by government NGOs and citizens of the country alike.
As a second generation descendant of refugees who fled to South Africa to avoid the xenophobic and racist attacks in Eastern Europe before and during the Second World War, I am particularly aware of the dangers and consequences of misguided xenophobic attitudes.
Julian Pokroy is one of South Africa’s leading immigration specialist attorneys, www.immigration.org.za, and currently heads the Law Society of South Africa’s Immigration and Refugee Law Specialist Committee and the Immigration, Nationality and Refugee Law Committee of the Law Society of the Northern Provinces. He is a member of the South African Law Reform Commission Committee.
This article appeared in the July 2015 issue of HR Future magazine.