Immigration Amendment Act [No 19 of 2004]
REPUBLIC OF SOUTH AFRICA
Vol. 472 Cape Town 18 October 2004 No. 26901
THE PRESIDENCY No. 1206 18 October 2004
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 19 of 2004: Immigration Amendment Act, 2004.
GENERAL EXPLANATORY NOTE:
r I Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
. ,- . 3 . . (English text signed by the Presidenl.) .~ . . .. . (Assented to 12 October 2004.)
ACT To amend the Immigration Act, 2002, so as to substitute the Preamble of the Act; to amend, insert or delete certain definitions; to provide for the delegation of powers and review procedures; to amend the composition and functions of the Immigra- tion Advisory Board; to provide afresh for interdepartmental cooperation; to amplify and redefine the Minister’s powers to make regulations and to amend the procedure in that regard; to provide for the clarification and revision of procedures and permits with regard to admission to, residence in and departure from the Republic; to clarify the appointment, powers and duties of inspectors; to further regulate the use of conveyances with regard to admission to the Republic; to repeal the provisions that provide for Immigration Courts; to provide afresh for the keeping of registers of lodgers by certain persons; to clarify the powers of immigration officers and police officers with regard to interviewing a person when they are not satisfied that the person is entitled to be in the Republic; to clarify the position with regard to certain offences; to correct certain important technical aspects in the text of the Act; to provide for the substitution for Schedule 3 to the Act of a new Schedule; to provide for certain transitional matters; and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Substitution of Preamble of Act 13 of 2002
1. The Preamble of the Immigration Act, 2002 (Act No. 13 of 2002), hereinafter referred to as the principal Act, is hereby substituted for the following Preamble: 5
In providing for the regulation of admission of foreigners to, their residence in, and their departure from the Republic and for matters connected therewith, the Immigration Act aims at setting in place a new system of immigration control which ensures that- 10 (a ) temporary and permanent residence permits are issued as expeditiously as
possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, - and without consuming excessive administrative capacity;
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Act No. 19,2004 IMMIGRATION AMENDMENT ACT, 2004
security considerations are fully satisfied and the State retains control [on] E the immigration of foreigners to the Republic; interdepartmental coordination [constantly enriches] and public consulta- tions enrich the functions of immigration control [and that a constant flow of public inputs is present in further stages of policy formulation, including 5 regulation making]; [the needs and aspirations of the age of globalization are respected and the provisions and the spirit of the General Agreement on Trade in Services is complied with] economic growth is promoted through the employment of needed foreign labour, foreign investment is facilitated, the 10 entry of exceptionally skilled or qualified people is enabled, skilled human resources are increased, academic exchanges within the Southern African Development Community is facilitated and tourism is promoted; [border monitoring is strengthened to ensure that the borders of the Republic do not remain porous and illegal immigration through them 15 may be effectively detected, reduced and deterred] the role of the Republic in the continent and the region is recognised; the entry and departure of all persons at ports of entry are efficiently facilitated, administered and managed; immigration laws are efficiently and effectively enforced, deploying to this 20 end significant administrative capacity of the Department of Home Affairs, thereby reducing the pull factors of illegal immigration; the South African economy may have access at all times to the full measure of needed contributions by foreigners; the contribution of foreigners in the South African labour market does not 25 adversely impact on existing labour standards and the rights and expectations of South African workers; a policy connection is maintained between foreigners working in South Africa and the training of our [nationals] citizens; push factors of illegal immigration may be addressed in cooperation with 30 other Departments and the foreign states concerned; immigration control is performed within the highest applicable standards of human rights protection[,]; [and] xenophobia is prevented and countered [both within Government and civil society]; 35
( n ) a hum& rights based culture of enforcement is promoted; (0) the international obligations of the Republic are complied with; and (p) civil society is educated on the rights of foreigners and refugees.".
Amendment of section 1 of Act 13 of 2002
2. Section 1 of the principal Act is hereby amended by- (a ) the substitution for subsection (1) of the following subsection:
"( 1) In this Act, unless the context [indicates] otherwise indicates-
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Act No. 19,2004
IMMIGR4TION AMENDMENT ACT, 2004
‘admission’ means entering the Republic at a port of entry [on the basis of the authority to do so validly granted by this Act or by an immigration officer in terms of this Act, and the verb “to admit” has a corresponding meaning] in terms of section 9; “application” means a request in the prescribed form which 5 complies with the requirements and provides the information and documentation which may be prescribed;] ‘Board’ means the Immigration Advisory Board [contemplated in] established by section 4 [of this Act]; ‘border’ means the national borders of the Republic [and includes 10 ports of entry, coastlines and the outer margin of territorial waters]; “chartered accountant” means a person referred to in section 1 of the Chartered Accountants Designation (Private) Act, 1993 (Act No. 67 of 1993) and includes an accountant, other than a 15 chartered accountant, who is recognised as such under any law and who has been specifically or generally delegated by a chartered accountant to perform any or all activities contem- plated in this Act;] ’citizen’ has the meaning assigned thereto in the South African 20 Citizenship Act, 1995 (Act No. 88 of 1995) [and “citizenship” has a corresponding meaning];
‘conveyance’ means any ship, boat, aircraft or vehicle, or any other means of transport;
[(vii)] ‘corporate applicant’ means a juristic person established under the 25 laws of the- Republic or of -a foreign country which conducts business, not-for-gain, agricultural or commercial activities within the Republic and which applies for a corporate permit referred to in section 21 [of this Act]: ‘[Court] - court’ means [an Immigration Court established in 30 terms of section 37 of this Act] a magistrate’s court; ‘customary union’ means a [conjugal relationship according to indigenous law and custom and which is recognised and documented as prescribed] customary union recognised in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 35 of 1998); ‘Department’ means the Department of Home Affairs; ‘depart or departure’ means exiting the Republic from a port of entry in compliance with this Act [and the verb ‘