ࡱ> KLJܥhc eCZQ4WbD/bD/DDDDD$hhhhh t ~h1ۑX3D./DDDDزhhDDDDJOINT ϲʹ-WORLD BANK SYMPOSIUM ON MOVEMENT OF NATURAL PERSONS [MODE 4] UNDER THE GATS PRESENTATION BY IVAN LAMBINON, DEPUTY DIRECTOR-GENERAL MARIO GR ORIANI-AMBROSINI, MINISTERIAL ADVISOR DEPARTMENT OF HOME AFFAIRS OF THE REPUBLIC OF SOUTH AFRICA ON MODE 4 TRADE - THE REGULATORS VIEW GENEVA : APRIL 12, 2002 Paragraph 2 [d] of Article 1 of the General Agreement on Trade in Services [GATS], identifies international trade in the supply of services through the presence of natural persons in a foreign country, when both the country of origin and the receiving one are Members to the Agreement. The extension of the notion of international trade to include trade in services supplied by natural persons who cross international boundaries to deliver such services may bring about a profound revolution in municipal legislation regulating international migration in most countries. In many countries the interface between migration control and broader policy making relating to international interest is somehow weak. Furthermore, the field of migration control is often charged with sensitive and difficult undertones which makes it difficult to adjust policies to a serene assessment of national interest, least of which to assess national interest within a broader and long-term global perspective. For this reason, there is often a gap between the policy fluidity and, I would say, modernity of the average field of legislative and policy efforts of many countries and their respective systems of migration control. Actually, many systems of migration control presently in force are the product of adjustments made on the original mould often established in the first part of the 20th century, and are insensitive to a global dimension of trade which extends to the movement of people. They were formulated for a more parochial and slower age. For this reason, I feel that the South African experience may be of particular interest as South Africas new and complete reforms of its system of migration control may point towards a range of migration control techniques which may be more responsive to the needs and aspirations of the 21st century. Prior to its liberation in April 1994, under the regime of apartheid, South Africa had operated with a system of migration control which was suited to a country in international isolation which emphasised security considerations and the ethnic composition of its population over any benefit associated with the international movement of people. For this reason, South Africa was faced with the need of starting from scratch and had the unique opportunity to conceptualize a new system of migration control which could look towards the future. South Africa presents a mixture of characteristics, as it is undoubtedly a developing country but with a higher level of prosperity relative to the rest of its continent, which makes it a target of migratory influxes, therefore raising the need for management and control measures which are typical of developed countries. Furthermore, South Africa finds itself operating under extreme budgetary restraints and social pressures which do not allow sufficient resources to be allocated towards migration control, and, therefore, any of its measures in this field must rely on and require minimum administrative capacity and be aimed at maximum simplification, objectivity and transparency in order to achieve maximum efficiency and effectiveness. Having to combine these various elements together, South Africas Minister of Home Affairs, Prince Mangosuthu Buthelezi, chose the hard option of developing a system of migration control which carries a number of unique innovations and reflects a visionary perspective of a more liberalized regime of international movement of people. I would like to present a few of such features because I feel that one of the main purposes of this symposium should be that of beginning to develop a process which may identify new techniques on migration control which may satisfy the concerns, habits and, why not, idiosyncrasies of the regulators, while fulfilling the obligations of the GATS and achieving its long term objectives. In so doing, we need to promote a new culture within each line function of migration control of Member States. Differently put, newer types of permits and techniques in migration control may be a better route to fulfilling the objectives of the GATS than creating artificial fast-tracks and exceptions for certain sectors. In many respects the new system of migration control which the South African Parliament is expected to pass on May 8, 2002 will represent an advanced status of that progressively higher level of liberalization referred to in Article XIX of the GATS. In fact, South Africa realized that in order to capture its full potential for economic growth it must increase its available level of skills and reach a critical mass of skilled and productive people and consumers. Having crossed such an important policy threshold, we applied our mind to the formulation of techniques which could enable our Government to classify the skills which are needed and to determine the degree to which they are needed. We had to determine both a need test as well as classify skills, which in theory seems simple but in the practice of a Government with limited resources, proved cumbersome and to a certain extent self-defeating. In respect of the classification of skills we realized that our economy needs a range of skills comprising not only those which are easy to classify, such as the customary liberal profession of medical doctors, accountants, engineers and lawyers, but also skills of people who, for instance, can operate complex machinery or had managerial skills. Needing both higher and lower level of skills, we found it difficult to define their relevant thresholds and priorities. An added difficulty was that the Government usually tends to assess skills through qualifications, while in present days labour market, the link between skills and qualifications is often irreparably broken. Experts such as web-designers and computer technicians often do not have qualifications which can be reduced to a diploma or a degree, while often qualifications and job-descriptions are no longer tied together, as engineers may act as business managers. In the end, only an employer has the capacity to determine whether a specific employee or service provider is suited, capable and qualified to perform any given task. Accordingly, the new system of migration control of South Africa, while contemplating a number of different work permits, provides for a new type of work permit which is expected to become the one mainly used because of its simplicity. This work permit is subject to no quotas, nor numeric limitations or skills classifications. It is also not subject to any fixed time-frame. It is issued on the basis of two simple criteria. The first one is a certification by a certified public accountant that the foreign employee will be remunerated at terms and conditions which in terms of applicable laws, collective bargaining agreements and practices, are not inferior to those applicable to a South African national in the same or similar workplace. The second, is a simple licencing fee paid on a quarterly basis into a fund established for the training of South African nationals. This mechanism embodies the need test because it assumes that if at parity of labour conditions someone is willing to pay a premium to employ a foreigner, then that foreigner has skills which are needed and may not be supplied by a national who would be cheaper to employ. This mechanism also maintains a connection between foreigners working in South Africa and the training of our nationals. Furthermore, through this mechanism there would be no need to determine time limits for temporary work permits, because, obviously for as long as the employer is willing to pay the licencing fee, the employee will continue to be needed. The issuance of this type of work permit will require no evaluations and can be completed almost on-sight once all the relevant information required in the application form has been provided. Naturally, in addition to the customary information satisfying security considerations such as police clearance and identity documentation, the application will require proof of whatever qualifications may be necessary to perform the intended job, together with the certification by a South African agency dedicated to this task, that such qualifications are equivalent to those issued in South Africa. The important feature of this permit is that it no longer relies on the need of distinguishing between skilled and unskilled workers and having to justify them into groups or quotas. The tool of policy formulation available to Government to regulate migratory fluxes is that of the licencing fee which can be raised in respect of foreigners who, on an aggregate basis, are deemed to be most necessary to our economic growth. This means that the licencing fee may be extremely low in respect of foreign surgeons who are needed and extremely high in respect of foreign street-sweepers which the South African labour market does not seem to specifically need. As an individual guarantee, once a foreigner enters at a certain level, the licencing fee applicable to him can not be raised for five years, which is the period to qualify for permanent residence. This system also does not require Government to differentiate workers and service providers on the basis of their nationality or origin. The employers will make that determination. In this fashion the fundamental objective of the GATS of parity of treatment among Members will be accomplished. Our Department will also need to carry out a new function which is that of deterring and redressing xenophobia and, once the system grows into its full potential, it is envisaged that this function will also address potential xenophobic patterns developed by employers who on the basis of prejudice would give preference to foreigners from one country over equally qualified foreigners from other countries. Another important feature of the South African reform of migration control is that of corporate permits which are going to be issued to large corporations and not-for-profit organisations, which will be allowed, in terms of such permit to employ a fixed number of foreigners. The corporate permit will enable such organisations to issue individual permits to foreigners directly from their human resources department and to pay an aggregate amount of licencing fee to the Government. By definition, the aggregate amount of this licencing fee will be lower than the aggregate amount of the licencing fee which the organisation would need to pay if they were to employ the same number of foreigners on an individual basis through individual work permits. Furthermore, the law enables the Department to partially or entirely waive the licencing fee if the organisation develops training programmes for South Africans which are specifically designed to transfer skills from the foreigners to our nationals to reduce such organisations dependancy on foreign labour. This is a freely negotiated process. It must be stressed that such organisation has also the opportunity of hiring additional foreigners with ordinary work permits, in lieu of using a corporate permit or in addition to the number of foreigners it may hire under the corporate permit. Effectively, the corporate permit privatizes the issuance of work permits and enables a reliable and suitable organisation to move the work permits allocated to it under the corporate permit, from one foreigner to the other, thereby meeting its internal needs and enhancing labour market mobility. Government will supply the procedures, forms and requirements which need to be verified and complied with in the issuance of such permits and will monitor and control their compliance as it would do with one of its decentralized or satellite offices. If the corporate permit holder is found not to be in compliance, the privilege may be revoked. These permits are expected to create a great deal of flexibility for providers of services and their employees. They are in addition to inter-company permits which enable the transfer of services from one company to a foreign subsidiary for up to three years and to investor permits which allow foreigners to establish businesses in South Africa. Inter-company permits will be subject to the usual methods which evaluate needs and justifications for the employment of the foreigner but not a labour market test, all of which may become less convenient than the procedure offered by the new type of permit. However, the investor permit has also been greatly simplified and the relevant procedures made objective so that no discretionary assessment is required. The elimination of stages of evaluation, inter-departmental consultation and review associated with the issuance of single permits is, in my opinion, a better way to achieve the objective of the GATS than the use of a Model Schedule creating fast-tracks for special categories, or resorting to the GATS permits or visas. Undoubtedly, the notion of the GATS permits and visas is intellectually pleasing but is extremely difficult to unpack into the regulatory reality of migration control and at best may offer the opportunity for a few exceptions for high level skills. South Africas reform of migration control has been seven years in the making and has tried to register the latest requirements and the trends emerging in the age of globalization. Effectively, it has tried to move all stages requiring evaluation, consultation and discretion at the aggregate policy level so that they would not be necessitated in the processing of the individual application. Furthermore, it has addressed the need to provide migration control with the highest degree of human rights protection, which is an unusual feature as throughout the world even in highly developed and democratic countries such as the United States, the functions associated with migration control usually register the lowest level of human rights protection available in that country. For instance in South Africa, warrants may be required for the deportation of foreigners and each decision relating to permits must comply with the full measure of available administrative justice, judicial review, transparency and accountability. These are also significant elements of compliance in respect of Article III, Article VI, Article XIX and other provisions of the GATS. Like many other countries South Africa faces the challenge of having to change the administrative culture presently underpinning migration control. In a symposium such as this one, it becomes clear that many countries will need to face the challenge of a profound paradigm shift in their attitude towards the international migration of people and, perhaps, question the continuing validity of long-standing classifications based on skills, qualifications and differentiation between temporary and permanent residents. The reality of migration is that many of such elements are in a continuum, and even in respect of residence the distinction between temporary and permanent does not survive the critique of the often observed phenomenon that temporary residence is a bridge into permanent residence. This might not be desirable, but cannot be wished away and may need to be accommodated on a larger scale. For instance, in our new system of migration control provision is made that after five years of temporary employment, a foreigner may graduate into permanent residence. By and large, South Africa is also about to make a profound paradigm shift from a mind-set wishing to control foreigners within its boundaries, to a new approach which registers the fact that foreigners are part of our society in numbers and varieties which Government can no longer define nor control upfront. Therefore, the new policy will be less concerned about the presence of foreigners and much more concerned about enforcing the restrictions on their activities. The new system will shift administrative capacity and emphasis from the issuance of permits into the enforcement of the law in workplaces, educational institutions and other places in which foreigners may conduct activities which they are not authorised to conduct. If reliance is to be given to the capacity of the market to regulate the number of foreigners who are really needed, then law enforcement becomes essential to prevent the creation of black labour markets and ensure that the more liberal regime does not create an opportunity for vast situations of illegalities. In looking around the world, one notices that it is quite common that the bulk of administrative resources available for migration control are employed in the processing of permits, rather than law enforcement. We believe that a more liberalized regime can only become viable and widely politically acceptable if emphasis and resources are shifted towards law enforcement. In order to simplify procedures in South Africa we have also collapsed into one, many different permits which were typical of our tradition as they are common in most countries. We realize that in the modern world there is little practical value and little administrative necessity for the distinction between tourists and businessmen and between them and those who come into the country for a short period of study or a short period of medical treatment. Therefore, we have designed a general entry permit which is applicable for three months, renewable for another term of up to six months, which can be employed for tourists, business, studying, medical treatment and any other activity other than those for which a work permit is required. Work permits are usually required for subordinate employment only. It must also be noted that the definition of work for which work permits are obtained excludes work conducted for a foreign employer pursuant to a contract which only partially calls for activities in South Africa. The definition also excludes business and professional work mainly based outside South Africa but requiring activities within South Africa. Effectively, the exclusions cover most of the most significant aspect of trade in services in respect of which a work permit will not be required and which will be able to be conducted with a general entry permit for a three month term renewable once. Therefore, the general entry permit seems to be a technique which greatly advances compliance with the provisions of the GATS and the fulfilment of its objectives. From a regulators viewpoint for as long as we are satisfied that all the relevant security concerns have been addressed, such as police requirements, the assurance that the foreigner has sufficient means to support his intended activities in the country and is earnestly intentioned to leave the country before the expiry of his permit, we are much less concerned about what the foreigner does for as long as he does not work as an employee. We believe that this new liberal system reflects the needs of the future and embodies the spirit and the mandatory provisions of the General Agreement on Trade in Service. We are moving into unchartered territory with the benefit of no memory from a past which is no longer applicable to our present and future challenges. There is no doubt that if we do so we will discover error, shortcomings and possibly even naivety in our approach. However, our Minister Mangosuthu Buthelezi, has often indicated that he perceives the 21st century having to engage with migration issues and formulate for them a new conceptuality and policy framework, almost on the same basis as the 20th century struggled with developing concepts and the policy framework for human rights. We feel that we are all breaking new ground and find it extremely exciting that perspectives are merging in the view of a globalized world. Therefore, as far as we are concerned it is proper and fitting that the trade perspective may force reform of migration control in all countries of the world. However, we warn of the difficulties as, at present, the language, concepts and policy slant of trade and that of migration control are profoundly different and cast in different moulds and frames of reference. It might be the case that migration control functions may need to be pulled into the new perspective amongst resistence, suspicion and rising political tensions. We can only express to those who will undertake these efforts our best wishes and pledge to them whatever assistance we may provide. While migration control will need to adjust to international trade requirements it might be necessary that to a lesser degree the reverse may also need to come about. For instance, I feel that sectorial commitments will remain extraneous to many systems of migration control and that, with a few exceptions, horizontal declarations will continue to characterize the practice of negotiations in this field. Moreover, sectoral commitments by themselves may not solve the problems encountered in the trade in service. For instance, work permits may be available, but the requirement that one must apply for them from outside the country and the prohibition against the adjustment of status may become effective barriers toward a work permit. Moreover, there may be exceptions for identified categories of sectors, but, as we move towards a more liberalized regime of international movement of productive people, such exceptions are bound to diminish if we rise to the challenge of changing systems of migration control so that they may apply with equal transparency, efficiency, liberality and expeditiousness to all productive people and service providers. In this respect this symposium may highlight the need for an inter-disciplinary dialogue and cross-pollination within the framework of the understanding that Mode 4 issues will set a foundation for a completely new mind-set on the international movement of people. ----oOo---- PAGE 7 .A...()()()..)().A ; j l kPmPQQ3Z4Z5Z;ZZ?ZBZCZQ[uPaP uDPVa ca cha c UVa cUa cGVf!9:;<{|F G 9:!!$$2(3(**--2288<<,<@@`FaFILLPPTTnWoWZZ%Z&Z4Z?Z@ZAZBZCZ>@K@Normal3]a"A@"Default Paragraph Font8O8 1AutoList2003 ]ac:O: 2AutoList2003 ]ac>O> 3AutoList20p03 p ]ac@O"@ 4AutoList20@ 03p@ ]acDO2D 5AutoList2003p@  ]acFOBF 6AutoList20"03p@  ]acJORJ 7AutoList20%03p@  ]acLObL 8AutoList20(03p@  ]ac8Or8 1AutoList1903 ]ac:O: 2AutoList1903 ]ac>O> 3AutoList19p03 p ]ac@O@ 4AutoList19@ 03p@ ]acDOD 5AutoList1903p@  ]acFOF 6AutoList19"03p@  ]acJOJ 7AutoList19%03p@  ]acLOL 8AutoList19(03p@  ]ac8O8 1AutoList1803 ]ac:O: 2AutoList18 03 ]ac>O> 3AutoList18!p03 p ]ac@O"@ 4AutoList18"@ 03p@ ]acDO2D 5AutoList18#03p@  ]acFOBF 6AutoList18"$03p@ 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