The Department of Labour has invited comments on the Draft National Labour Migration Policy (NLMP) and the Employment Services Amendment Bill (ESAB) by Saturday 28 May.

In this article, we answer key questions you may have about the policy and bill.

What is the policy all about?

The NLMP is the first comprehensive national policy on labour migration in South Africa which covers the management of labour migration into South Africa and from South Africa. It seeks to achieve a “brain gain” (through skills entering the country) and to counter a “brain drain” (through skills leaving the country).

The Employment Services Amendment Bill goes hand-in-hand with the NLMP and has been created to make it legal for the government to regulate the employment of immigrants in South African businesses.

This means that quotas can be introduced, limiting the employment of immigrants and compelling employers to employ South Africans instead. This has been a controversial aspect of the proposal.

Also related is the National Small Business Act, which seeks to limit the involvement of migrants in the informal sector. Foreign nationals will be banned from starting businesses in some sectors.

Who should comment, how and why?

Anyone in South Africa can submit comments to the Department of Labour, by emailing a written comment to [email protected] by 28 May.

The Department of Labour is mandated to consider the comments submitted by the public before the NLMP and Employment Services Amendment Bill are finalised.

Why is the policy being proposed?

The draft policy explains that migrant labour has been a vital part of South Africa’s history and before 1994 was governed by apartheid laws.

Since democracy, key changes have been made to the migration laws, but a comprehensive migrant labour policy has never been created.

This has led to “reactive” interventions rather than policies to ensure the South African economy fully benefits.

Migration in South Africa has also changed over the years. The decades-old migrant labour system in South Africa’s mining industry is slowly being phased out, and an increasing number of low-skilled immigrants from SADC countries and new immigrants from Asia are entering the country in search of opportunities.

South Africa is the largest host of immigrants in Africa, with an estimated 4.2 million international migrants living in the country in 2019 according to the United Nations. That’s about 7% of the population. This includes people from other countries who have become South African citizens.

These phenomena, among others, are listed as reasons for a comprehensive labour migration policy.

What does the Department of Labour want to achieve through the new policy?

Firstly, the NLMP will attempt to put more power in the hands of the Department of Labour, rather than Home Affairs, to govern and manage labour migration. Historically, Home Affairs has been the main administrative authority, with the Department of Labour acting mostly in an advisory capacity.

Secondly, the NLMP creates a framework to strengthen the collection and analysis of labour migration data, attempting to put an end to years of insufficient monitoring. This data, the authors of the policy claim, will enable better-informed policy-making.

Thirdly, the policy claims to set out to make labour migration more beneficial to the South African economy, through interventions that attract and retain skills into the country while also introducing quotas to “protect employment opportunities” for South Africans.

Businesses that do not adhere to the quotas on foreign workers could be fined up to R100,000.

At the same time, the policy claims to propose interventions to improve the living conditions of immigrant workers, and to fight xenophobia.

Finally, the NLMP states that it will attempt to stop the “brain drain” from South Africa by designing incentives for citizens to stay in South Africa, or to come back if they are already working overseas.

How would the policy affect the economy?

The policy notes that migrant labour is essential to the economy, as many immigrants possess critical skills that are scarce in South Africa. The policy aims to attract and retain these skills for the long-term benefit of the economy, leading to a “brain gain”.

There is also a growing concern among economists that skilled South Africans are leaving the country, thereby causing a “brain drain”. The policy proposes that South Africans should be encouraged to stay in the country or to return if they have left.

The rationale is that through the retention of important skills, the South African economy is able to grow and innovate.

But although the policy lists concrete measures to regulate immigration into the country, it does not list any concrete measures to deal with the “brain drain”. It merely says that a strategy will be designed.

How would the policy affect immigrants?

The draft policy undoubtedly intends to crack down on immigrants unlawfully working in South Africa.

When announcing the draft NLMP, the Department of Labour said the bill will attempt to “address South Africans expectations” in the face of “the perception that foreign nationals are distorting labour market access”.

The draft policy comes at a time in which xenophobia is brewing, with the recent killing of a Zimbabwean man in Diepsloot and a growing “South Africa first” sentiment.

The NLMP claims that it will improve the lives of immigrants by putting an end to the exploitation of migrant workers and by making available more opportunities for legal employment. At the same time, the job-protection interventions are designed to address anti-immigrant sentiment, the writers of the policy claim.

A critical skills list will be used to open avenues to legal employment for immigrants who possess certain skills. But quotas limiting the number of immigrants working in some sectors, and regulations compelling employers to choose South Africans over immigrants, will also be introduced.

This has caused concern that this will actually contribute to xenophobia and make life more difficult for immigrants living in the country.

In recent interviews on the NLMP, Minister of Labour, Thembelani Nxesi, stated that legal migrant workers will be welcomed and their rights will be protected. But he also said that a “crisis” has been created by companies hiring lots of “illegal migrant workers”.

The Minister did not offer data to back this up and the NLMP does not either. Mainly because such data does not exist due to insufficient recording.

Asylum seekers

South Africa has had a “South Africa first” employment policy since 1994. And because South Africa’s Immigration Act does not enable the migration of low-skilled workers, many immigrants rather use the asylum system to get refugee status and permission to work.

Since 2017, asylum seekers (under section 22) are not automatically permitted to work in South Africa and have to seek special permission to do. Only once asylum seekers are recognised as a refugee (section 24) do they enjoy the same rights as South Africans (apart from voting).

According to the United Nations Refugee Agency, there is an asylum backlog of 153,000 cases. As of 2020, there are about 77,000 people with refugee status in South Africa.

There are also nearly 180,000 Zimbabweans who hold Zimbabwean Exemption Permits (ZEP) to live and work in South Africa. Earlier this year, Home Affairs said it will not renew these permits.

Most of these permit holders do not qualify for the critical skills list published by Home Affairs in February, and would therefore face deportation.

There is also misinformation about how many undocumented migrants live in the country. We do not know the number of undocumented migrants, mainly because of negligent data gathering and reporting by Home Affairs.

This has all contributed to the growing perception among South Africans that immigrants are working unlawfully and taking away job opportunities.

The NLMP, which is self-described as a human-rights-based policy based on international best practice, claims that its quota system, critical skills list, and other interventions, will help address these issues.

It says it wants to make life better for low-skilled migrant workers, but offers little details on how it will do so, other than referring to Home Affairs’ 2017 White Paper which proposes more legal avenues for employment for low-skilled migrant workers.

The White Paper, still being reviewed, also recommended that asylum seekers not be granted automatic permission to work. Accordingly, the Refugees Act was amended in 2017, while the aspects of the White Paper that would make life easier for immigrants are yet to be implemented.

Given that the most recent critical skills list published by Home Affairs does not accommodate low-skilled workers, it is still unclear how this will benefit the many low and semi-skilled immigrants working in the country.

To deal with “irregular migrants” in South Africa, the NLMP endorses Home Affairs’ plans to introduce special permits for SADC citizens seeking opportunities in South Africa. These plans are yet to be piloted or fully explored.

Through regular inspections and intervention, the NLMP claims, the Department of Labour will be able to ensure that migrant workers are not being exploited and that regulations proposed by the NLMP are being followed.

But analysts are concerned that there is not enough political will to enforce the rights of immigrant workers. South Africa has still not ratified the SADC Protocol on Employment and Labour, nor two International Labour Organisation (ILO) conventions on migration (although the ILO was a key player in creating the NLMP).

Another concern around quotas is that there is limited data available on which to base such decisions and that without sufficient data, any quotas imposed would be ill-informed. The NLMP, and the amendment bill, is preparing for the implementation of quotas before the gaps in data are addressed.

Will the policy even be implemented?

Writing a policy is one thing, implementing it is another. South Africa does not have a good track record when it comes to enforcing the existing labour and migration laws.

For the NLMP to truly achieve its goals, the problems within Home Affairs would need to be solved. Every year, millions of rands are spent unsuccessfully on migration control. The inefficiency of Home Affairs causes administrative issues that contribute to immigration law violations and violations of the rights of immigrants.

Refugee reception offices are understaffed and unable to process the extensions of many asylum seeker visas.

The Department of Labour itself is unlikely to be sufficiently resourced to carry out the types of inspections proposed by the NLMP, or to successfully achieve interventions such as “improving the lives” of immigrants.

It is already struggling to inspect South African workplaces and enforce labour laws pertaining to South African employees. Extending the purview of the Department of Labour, as the policy suggests, will require even more resources.

The NLMP’s recommendations may take years to come into effect and will require inter-departmental collaboration on a scale rarely seen in South Africa, if ever. DM

First published by GroundUp.

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