MUNYARADZI NKOMO: White paper on migration can help to sidestep Zimbabwe exemption permit battle

The African proverb, “When elephants fight, it is the grass that suffers,” aptly describes the consequences of the Zimbabwean exemption permit (ZEP) holders’ battle with the department of home affairs.

On Friday, the high court issued its judgment in the case brought by the Helen Suzman Foundation. The foundation’s lawsuit was a response to the government’s decision in November 2021 to discontinue the special dispensation programme for Zimbabweans. These permits had been granted since 2009, allowing over 177,000 individuals to reside in SA. The foundation’s argument focused not on challenging the decision itself, but rather on the way it was made.

The court ruled in favour of the foundation, highlighting four grounds on which the decision was deemed flawed: it was procedurally unfair, irrational, and made without prior consultation with the affected individuals; it violated the constitutional rights of the ZEP holders and their children; it failed to consider the impact on the ZEP holders; and it contained material errors of fact regarding conditions in Zimbabwe, rendering it irrational.

Consequently, the court sent the decision back to the minister of home affairs for reconsideration and granted a 12-month extension to the ZEP holders from the date of the order.

While ZEP holders rejoiced, the reaction from the broader society was one of frustration and anger. Ultimately, the impact of this issue will be to negatively affect efforts for a more cohesive society. It is the government’s stated objective regarding the management of regional migration in a manner that ensures a balance between the economic interest of the local citizenry and the regional role that SA plays in Sadc and the continent. Achieving a consensus between these competing objectives is central to its migration policy, as outlined in the white paper on international migration.

Unfortunately, this was a missed opportunity to implement progressive suggestions from the white paper. These suggestions aimed to reduce illegal migration, combat corruption, reduce the trade in false documents, limit the abuse of migrants in the labour market and alleviate downward pressure on salaries for locals and foreigners.

Such objectives would contribute to a more cohesive society, dispelling the growing sentiment that all African migrants are irregular and undesirable.

Debates arose on whether the decision was reviewable, as it appeared to be a policy decision rather than an administrative one. However, the court determined that it fell within the scope of an administrative decision and exercised its powers under the Promotion of Administrative Justice Act to review and set it aside.

Nevertheless, the question of what the ZEP truly represents remained unexamined. Is it a waiver or a permit? In my view, the ZEP and similar special permits are exemptions, as stated in section 31(2)(c) of the Immigration Act (a waiver), rather than permanent residence exemptions as described in section 31(2)(b) of the act. Had it been the latter, there would have been no need to impose conditions limiting ZEP holders from working, studying, or running  businesses.

Additionally, if the ZEP were indeed a waiver, it raises the question of whether it was rational to restrict ZEP holders from applying for permanent residence through the ordinary channels. Waivers are commonly used in visa applications to allow applicants to submit without meeting certain requirements. If a person issued a general work visa after obtaining a waiver can apply for permanent residence after five years, why shouldn't the same opportunity be available to ZEP permit holders?

Answering these questions would provide clarity on the legal rights of permit holders, which is particularly relevant as the Lesotho Special Permit holders face a similar situation with visas expiring in December 2023. Furthermore, aside from Zimbabweans awaiting clarity on their future beyond June 2024, there are also Angolans whose unresolved situation dates back to 2018. The purpose of the law is to provide certainty, yet the situation surrounding these special permits has been far from reassuring.

Migration flows

Fortunately, a solution lies within the white paper on international migration. The government acknowledges that managing economic migration from Sadc is the most challenging policy area. Despite SA’s historical labour migration within the region, building consensus on a clear policy and strategy has proved difficult. The country’s diverse society emerged from historical migration patterns in mining, agriculture, hospitality, construction, and domestic work. Hugh Masekela’s song, Coal Train, captures this phenomenon. As the biggest and most advanced economy in the region, SA experiences strong migration flows from neighbouring countries, leading to competition for scarce resources and periodic violence against foreigners.

The white paper proposes three policy interventions to address this challenge.

First, a regularisation programme modelled after the Zimbabwean Special Dispensation Permit, Lesotho Special Permit and Angola Special Permit aims to tackle irregular and illegal immigration. While these interventions have made some progress, full success remains elusive.

Second, an expanded visa regime would cater to economic migration from Sadc, with a quota-based system for piloting three visa types for Sadc nationals.

Third, stronger enforcement of immigration and labour laws is critical to prevent citizens from being disadvantaged by employers who pay lower wages to economic migrants. Enhanced compliance with immigration and labour laws would decrease irregular migration, while providing additional pathways for semi-skilled individuals, who constitute a significant portion of ZEP holders, could discourage illegal entry into the republic.

Implementing these interventions is expected to relieve pressure on the asylum seeker management system, reduce downward wage and employment pressures in the lower end of the economy, and enhance social cohesion.

The state of affairs benefits no-one. Affected migrants face prolonged uncertainty, lacking visas or a clear pathway. Citizens feel that their grievances are not being taken seriously by the government and courts, while the government must grapple with antiforeigner sentiments.

While this battle may have been won, the war against decaying social cohesion may have been lost. In any war, there are no winners, only widows.

Nkomo is an immigration specialist and MD of Strategies Migration Services SA.