The roots of the current South African migration policy go back to colonial times, even if the end of Apartheid (1994) was an important turning point in its historical development. Migration continues to be a central factor for the socio-economic development of South Africa, and migration policy is clearly an issue that touches a wide range of controversial social problems and should be discussed as such. Nonetheless, the African National Congress (ANC), which has governed South Africa since 1994, has generally failed to make migration a key focus of political reforms in the Post-Apartheid era.
Migration Policy before Apartheid
The early mining industry in South Africa regulated migration using a strictly regimented migrant labor system, which would then be influential for later legislation during the Apartheid regime. Even before Apartheid, South African migration policy was based on racial discrimination. One of the first nationwide laws on migration, the Immigration Act of 1913, had already aimed to regulate growing labor immigration from other African countries and to restrict the native Black population’s freedom of movement
Migration Policy during Apartheid
The Apartheid regime’s immigration legislation was based on racist selection criteria, aimed at economically exploiting labor migrants from neighboring countries, and it also lacked a refugee policy. The Aliens Control Act of 1937 established racial criteria for the entry of immigrants to South Africa. According to this law, White (especially Protestant) immigrants from Europe were to be favored over Black immigrants from neighboring countries, as well as over Jewish immigrants from Eastern Europe.
The immigration of labor migrants working in the mining industry was organized according to bilateral agreements with the respective countries of origin. The recruited workers had hardly any rights. With the Aliens Control Act of 1991, framework legislation consolidating all the previous laws, the immigration of White people was made even easier than before. It formalized the racist orientation of migration policy even further, in that it created a so-called “two-gates-policy”, according to which a migrant would have to fulfill different conditions and would gain different rights, depending on whether he/she was White or Black. White immigrants were welcomed in hope that they would help stabilize the power of the ruling elite. For Black people there were hardly any opportunities to immigrate legally. They were only allowed to come temporarily to work in the mines. Employers who hired migrants without valid residence and work permits were not legally prosecuted, making it even easier to exploit these laborers
Migration Policy since the End of Apartheid
The legacy of Apartheid is still reflected in the migration policy of the “New South Africa”. The Aliens Control Act of 1991 remained in effect until 2002. The new government’s first priorities were focused instead on the domestic situation: as part of the nation-building process, its highest aim was to improve the living conditions of the Black population native to South Africa. Immigrants from the neighboring regions were seen as disruptive to the process of rebuilding the nation.
However, the contemporary developments also demanded active changes in migration policy. Some of the most urgent challenges for the new government included the growing number of asylum-seekers, the legal status of migrants without valid residence permits (irregular migrants), the emigration of highly skilled labor (brain drain), and the demand for skilled immigration. After recognizing particular international agreements, the government granted amnesty to the respective migrant groups, thus legalizing their residence in the country. Especially labor migrants from Mozambique, Zimbabwe, Malawi, Lesotho, Botswana, and Swaziland were granted a permanent status. Seven years of political negotiations followed, finally resulting in new framework legislation: the Immigration Act of 2002. This was the first legislation in South African history to recognize migration as a useful instrument for social and economic development, and it granted migrants specific rights. In contrast to previous migration policies, which only focused on cheap (low-skilled) labor, this new law gave special attention to the recruitment of skilled labor. However, this policy was not to put the South African population at a disadvantage: to date foreign laborers are only recruited in sectors where the labor demand cannot already be fulfilled by native workers. The recruited workers are also usually only given a temporary residence permit. Existing minimum standards, for instance employment law, are not to be undermined by immigration
The 2002 Immigration Act, including some amendments, constitutes the basis for the current South African migration policy. An extension in 2014 made visa regulations more restrictive, primarily with the intention of curtailing irregular immigration.
Despite some far-reaching migration policy changes, there remains the policy of prevention, selection, and control of migration, and the social exclusion of migrants continues. There are no coherent strategies for integrating immigrants. Foreign certifications and degrees are often not recognized, labor immigrants do not have the same workers' rights as South African citizens, and the issuance of residence permits depends upon the economic desirability of the migrant.
Not only party conflicts, but also influential interest groups hinder the quick implementation of a modern migration policy. For instance, the mining lobby is still interested in being able to recruit cheap, disenfranchised foreign laborers. Private sector actors held a strong influence on South African immigration policy throughout the 20th century and still influence agenda-setting in South African migration policy today
Before the democratic turn in South Africa, citizenship and civil rights were reserved for White population groups. Full citizenship rights were granted to White people born in South Africa, as well as to White skilled immigrants from neighboring countries, who were able to receive South African citizenship relatively easily. This is how the White minority secured its power for so long during Apartheid. In contrast, the many Black labor migrants who were necessary for mining, industry, and agriculture, as well as the Black South Africans in the Homelands had no right to gain South African citizenship. This did not change until Apartheid ended.
Citizenship laws were reformed in 1995 with the South African Citizenship Act, which established three possible ways to become a South African: first, by birth on South African territory (jus soli); second, by birth to at least one South African citizen parent outside of the country (jus sanguinis); third, by naturalization. It is possible to apply for naturalization if one has lived for five consecutive years in South Africa with a permanent visa. Especially for skilled migrants and their families, the new citizenship law provides a motivating factor to immigrate permanently. However, the many labor migrants who spend long stretches of their lives in the mines or on the fields of South Africa only rarely receive a permanent residence permit. They have hardly any opportunities to become a South African citizen and to gain their full rights. The residential status has become a central instrument of migration policy. It regulates migrants’ opportunities to participate in society as potential new citizens, depending on their economic utility, wealth, and skills
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