‘SA’s immigration and citizenship systems are about to change fundamentally,’ says immigration attorney Gary Eisenberg, founder of Eisenberg & Associates.

He notes Home Affairs Minister Dr Pakishe Aaron Motsoaledi has indicated that SA’s immigration system, especially permanent residence, will be reviewed because it is just a step away from citizenship.

In his analysis on the Daily Maverick site, Eisenberg says the nexus between immigration and citizenship and the need to sever it was first articulated in the White Paper on International Migration adopted by Cabinet in 2017.

It argues that permanent residence and citizenship must be delinked, and that this would occur through the replacement of permanent residence status with a long-term temporary visa.

Motsoaledi said that he had already decided that the separate Immigration, Citizenship and Refugees Acts are causing serious problems and havoc in SA’s courts and therefore they should be combined into a single Act.

Eisenberg says Motsoaledi ‘purposefully’ uses the word havoc to describe an untenable conflict wrought by the separation of these Acts in order to discredit the existing legal order.

‘Our courts have not entertained any such conflagrations. Rather, the deluge of litigation in our courts in this context relates mostly to the advanced dysfunction of the Department of Home Affairs in its administration of those Acts.’

Eisenberg says Motsoaledi is attempting to stem the flow of blame and finger-pointing at Home Affairs into a different direction: ‘that the way Parliament has chosen to legislate in these areas of immigration, citizenship and refugees since at least 1949 is discordant with international best practice, disharmonious, and should thus be replaced with a new ideological paradigm for dealing with foreign nationals’.

Eisenberg argues Motsoaledi’s suggestion – that his new paradigm will protect the integrity of the law and SA’s sovereignty, not individuals – is wrong.

‘Law is not an automaton making independent decisions, decoupled from human actors, as if it existed in some imagined levitating bubble. Officials of the public administration, subject to those values contained in section 195(1) of the Constitution, are empowered by legislation to carry out various functions.’

Eisenberg adds: ‘The truth is that nothing Motsoaledi and his policy advisers will do in the rewriting of the legislative script could ever erase the risk of administrative malfeasance and moral pollution which has for so long punctuated Home Affairs.’

Full analysis on the Daily Maverick site