Draft immigration regulations: Cross-border complexity

THREE years in the making, draft immigration regulations published for comment by home affairs minister Naledi Pandor on February 17 have been slammed by immigration specialists. One of their main concerns is what they believe to be the unconstitutionality of some sections.

"There are many elements in conflict with the constitution," says immigration lawyer Julian Pokroy. "They should go back to the drawing board," he says.

Echoing this view, migration lawyer Craig Smith says: "Many of the draft regulations are clearly misguided and unconstitutional."

The most glaring example of constitutional conflict is the draft regulation relating to foreign spouses, says Leon Isaacson, MD of migration services firm Global Migration SA.

"It will be possible to apply for a spousal permit for a foreign spouse only if the couple can prove a relationship for five years," he says. "This is contrary to judgments handed down by the constitutional court."

Isaacson says another example of an "unconstitutional" regulation is one precluding foreigners applying to home affairs for permits and visas from being represented by advocates, lawyers and professional migration practitioners.

Publication of draft regulations clears the way for the Immigration Amendment Act passed in 2011 to be promulgated by Pandor and implemented. But they are not the first draft regulations related to the amendment act, says Pokroy, who was a member of the parliamentary immigration advisory board when the act was passed.

"We were tasked with drafting regulations at the time and took great care to ensure they were in line with the constitution," says Pokroy. "But those regulations were shelved."

Beyond their constitutional concerns, migration practitioners have another gripe. "Huge inconvenience for foreign investors and applicants will be created," says Isaacson.

Notwithstanding the dissatisfaction with the draft regulations, the scheduled implementation date of the act - April 1 - is looming. It will come only three weeks after the deadline for public comment.

"April 1 appears to be an impractical implementation date," says Pokroy. "There is too much to do in such a short time."

Obstacles include the need for a review of regulations by the law advisers of home affairs and the state and a government printer backlog, he says.

In agreement, Smith says: "People are panicking unnecessarily. April 1 will come and go and for sure no new laws will be implemented."

Not so, responds home affairs deputy director-general of immigration services Jackie Mckay. "There is enough time to implement the act on April 1," he says.

He also dismisses concerns about constitutional conflict. "We have worked on the draft regulations since 2011 and consulted relevant parties," he says.

On the spousal regulation specifically, he says: "People are misinterpreting the regulation but I will be able to comment only once [the final draft] has been published."

For those who are aggrieved by the regulations, Mckay has a message: "They have recourse to the courts to have them tested."

And tested they will be, predicts Pokroy.

"If they force the regulations through there will be a host of [law suits]" he says.