Migration: SA should take US lead and fight crime, not chase illegals

AMERICAN immigration policy under the Obama administration has taken a pragmatic and progressive turn to halt deportation proceedings against undocumented migrants who pose no threat to public safety. An editorial in The New York Times comments that the White House has taken a large step towards a more sensible and lawful policy on illegal immigration.   The US has an estimated 11-million illegal immigrants. The new policy will mean that the many illegal immigrants who came to the US as children and who have now graduated from high school and want to enrol in college or the armed forces will be designated low priority for deportation.  

 

The new policy ratifies an approach set forth in a recent memo from the director of Immigration and Customs Enforcement, John Morton, on the agency’s use of "prosecutorial discretion". The memo suggested that immigration enforcement officers and lawyers should move more aggressively against drug dealers, gang members and other flagrant violators than against illegal immigrants who pose no danger. That would include people with clean records, those who came to the US as children, the elderly, pregnant women, veterans, service members and those with serious illnesses or disabilities.   The administration is not granting amnesty for any class of immigrants. It will instead review thousands of individual deportation cases one by one, and suspend deportation proceedings in cases where a person is no threat.  

 

The new policy would give illegal immigrants who came to the US as children a chance to regularise their immigration status if they go to college or take up military service. However, undocumented convicted criminals would continue to be expelled from the country.   This progressive approach in the US is different from the immigration policy employed in SA. SA’s Department of Home Affairs deputy director-general, Jackie McKay, recently said at a press briefing : "We target all nationals found to be without legal documentation, whether black or white, they are arrested and deported."  

 

According to home affairs statistics, there are about 1,5-million Zimbabweans in the country. Only 275762 applied to regularise their immigration status during the Zimbabwe Documentation Project, which was open for application for a very short period from September to December last year. There are an estimated 900000 Zimbabweans in the asylum process, many of whom have already been rejected and are in the appeals process.   This leaves a significant number of Zimbabweans who are likely to be undocumented and vulnerable to deportation.  

 

The migration flow between Mexico and the US is comparable to that between Zimbabwe and SA. While the US has taken an important decision to deprioritise immigration enforcement of undocumented persons who pose no threat to the public, SA has recently lifted the moratorium on deportations to Zimbabwe, which had been in place since April 2009.   This means that any undocumented Zimbabwean who may be detected by police or immigration officials may be arrested, detained and deported to Zimbabwe — without any court inquiry or independent assessment of their circumstances.   Before the moratorium was put in place, detention and deportation was a largely ineffective means of immigration control.

 

An estimated 15000 undocumented Zimbabweans were deported by the South African Police Service (SAPS) each month from the holding facility outside Musina in Limpopo until a court ordered its closure as a deportation centre. This facility, with its degrading and subhuman conditions, did not deter anyone from entering the country. There is absolutely no evidence that restarting deportations will be any different.   The persistent engagement of the SAPS in immigration enforcement brings tangible and direct benefits to home affairs in the form of increased numbers of immigration arrests. Over the past decade, and primarily due to the efforts of the SAPS, SA has seen a steady increase in the numbers of people being arrested for immigration offences.  

 

These arrests have led to a growing number of deportations — this output is regularly featured in home affairs annual reports but not in the corresponding SAPS reports. The police do not report on this category of arrests because immigration offences are not listed on their schedule of priority crimes.   The most basic and common immigration offence — that of being illegally present in the country — is seen as an administrative offence rather than a criminal offence. For police officials, immigration enforcement, while part of their duties, is a very low priority.  

 

There is widespread consensus among the SAPS, migrant groups and researchers that the vast majority of foreign nationals and "illegal foreigners" in the country do not come here to perpetrate crime and are generally not involved in criminal activities.   Another glaring difference is the economic effect of migration. The US economy may be better equipped to absorb the numbers of undocumented persons compared with the South African economy, with its high unemployment and sweeping poverty. But one thing is certain — u sing a costly and ineffective removals process is not going to address the irregular migration problem.  

 

If SA had a functioning regional migration system, every foreign national entering and leaving the country would be recorded.   Every foreign national would have a permit authorising them to enter and reside in the country for a specific period, and police, immigration and other state departments would all be in a much better position to be able to plan for delivery based on the accurate data on the numbers of non-nationals in the country at any given time. This would go a long way to reduce corrupt practices.   However, this is not possible in the current immigration framework as many Southern African Development Community citizens are forced to enter and leave the country irregularly or become part of corrupt practices to facilitate their entry, residence and departure.   The deportation process is costly and the South African taxpayer bears that burden. A 2009 report by the African Centre for Migration and Society estimates that SAPS in Gauteng spends R350m a year on immigration policing — despite deportation not having been shown to have any deterrent effect on irregular migrants.  

 

The US approach is sensible and takes into consideration the realities of modern migration. People migrate whether or not there is a legal way for them to do so.   Should SA also be rethinking its priorities with a focus on crime control as opposed to immigration enforcement on those who pose no threat to public safety? This will result in many more police officers being available to target crime rather than chasing undocumented domestic workers, gardeners and hawkers for selling tomatoes on the streets without a permit.              

 

• Ramjathan-Keogh is director of the refugee and migrants rights programme at Lawyers for Human Rights.