Migration laws, policies and implementation SAIIA-KAS Migration - - PowerPoint PPT Presentation
Migration laws, policies and implementation SAIIA-KAS Migration Conference Revisiting the Migration Regimes in the EAC, SADC and COMESA Presentation by Tsotetsi Makong Trade facilitation and trade law expert Trade Policy Training Centre in
Presentation by Tsotetsi Makong Trade facilitation and trade law expert Trade Policy Training Centre in Africa (trapca)
Research Perspective Marie-Laurence Flahaux and Hein De Haas in, African migration: trends, patterns, drivers (2014) decried that “ Africa is often seen as a continent of mass migration and displacement caused by poverty, violent conflict and environmental stress. Yet such perceptions are based on stereotypes rather than theoretically informed empirical research.”
This diversification of African emigration particularly from Europe to other continents seems partly driven by the introduction of visa and other immigration restrictions by European states – (New RESTRICTIONS). African Migration is slightly shifting from being triggered by poverty, violence and underdevelopment to being driven by processes of development and social transformation which have increased Africans’ capabilities and aspirations to migrate, (this trend which is likely to continue in the future) Is an image of an ‘exodus’ of desperate Africans fleeing poverty at home in search of the European ‘El Dorado’ true picture of the reality? This stance is disputed
Some scholars have fueled the image of a rising tide of poverty-driven African migration inter alia driven by environmental preoccupations (Myers 2005, p.4), poverty and income gaps Others propose curbing of the rights of immigrants (Collier 2013), and development failure by the global south ( Bakewell 2008) However, empirical research and analysis by Bakewell and Johnson 2011, Berriane and De Haas 2012, Bilger and Kraler 2005, Schielke and Graw 2012 etc revealed that African migrations were quite diversified with the great proportion of migration being intra Africa relative to Europe bound migration Evidence suggests that most Africans migrate for family, work or study (Schoumaker et al., 2015) (Bakewell & Jόnsson, 2011), similar to other world regions.
Enforcement of laws – foreign workers without required documents including work permits, possession of illegal documents Deportations vs. impact on the economy Data capturing and tracking of migrants vs. legitimate deportation – tourists transforming into blue collar class Transfer of knowledge and tech Typology of sectors vs limitations imposed by applicable laws Labour vs. security
Some key pieces of legislation underpin TZ approach to migration. These are: The Immigration Act, 199 The Tanzania Passports and Travel Documents Act, 2002 The Tanzania Citizenship Act, 1995 The Anti-Trafficking in Persons Act, 2008 The Prevention of Terrorism Act, 2002 These laws interlock through a web of regulations – by implication a number of authorities involved in the implementation of these laws. Tanzania is also a member of various international bodies including the WTO and EAC where it is bound by its commitments
Prohibited Immigrants: These range from persons refusing to submit to examination by a medical practitioner after having been required to do so a person who has been certified by a medical practitioner to be suffering from a contagious or infectious disease which makes or which would make his presence in Tanzania dangerous to the public a person who, not having received a free pardon has been convicted in any country
imprisonment has been passed for any term and who by reason of the circumstances connected therewith, is considered by the Minister to be an undesirable immigrant A person whose entry into or continued presence in Tanzania is, in the opinion of the Minister or the Principal Commissioner of Immigration Services, undesirable and is declared by the Minister or the Principal Commissioner of Immigration Services to be a prohibited immigrant (catch all category)
ENTRY REQUIREMENTS AND VISA INFORMATION Upon complying with the entry requirements, a bonafide visitor is issued with a Visitor's Pass on arrival at the entry point TZ for a validity not exceeding three months in first instance and not exceeding six months for citizens of East African Community –( Preferential treatment) REQUIREMENTS FOR VISA An application of Visa for United Republic of Tanzania should be accompanied amongst others by a security Bond duly filled in(for Multiple Visa);
Residence Permits – provided for by Immigration Act RESIDENCE PERMIT CLASS 'A’ Residence Permit Class A may be granted to a person who intends to enter or remain in Tanzania and engage in trade, Business, Profession, Agriculture, Animal husbandry, prospecting of Minerals or manufacture - some requirements – security bond, CV etc.
Residence Permits – provided for by Immigration Act RESIDENCE PERMIT CLASS 'B’ Residence Permit Class 'B' is issued to a foreigner who has obtained specified employment in Tanzania, and the Commissioner General of Immigration Services (subject to recommendation by the Director of Employment) is satisfied that he possesses qualifications
Tanzania.
Some requirements include: a letter of recommendation from the Director of Employment, Ministry of Labour and Employment
RESIDENCE PERMIT CLASS 'C' Residence Permit Class "C" may be issued to foreigners intending to enter and reside in Tanzania for purposes other than those specified for the grant of Residence Permit Class "A" or "B". These include; students, researchers, volunteers, persons attending cases in Court of Laws, persons who have formerly been residents and are about to leave the country (i.e. winding up affairs), and persons attending medical treatment in hospitals. Requirements for Residence Permit Class "C" differs depending on the categories of activities that a foreigner intends to engage in.
Residence Permits
Residence Permits
Residence Permits
Challenges and successes? All in the eyes of the beholder – challenges/successes from whose perspective? The Non-Citizens (Employment Regulations) Act 2015 - The Act came into effect as from 15 September 2015 The Act Affects employers (Investors) and employees both private and public sectors in Tanzania who are non-citizens
Application for and approval of work permits
The application for work permit has to be submitted to the Labour Commissioner entrusted with the authority to receive, process application(s) and issue work permit(s). The Labour Commissioner shall, before approving an application for a work permit, “satisfy himself that all possible efforts have been explored to obtain a local expert”.
Challenges and successes?
The Act requires a Succession Plan: Under the Act an employer intending to employ or engage a non-citizen is required to: Prepare a succession plan which must set out “a well- articulated plan for succession of the non-citizen’s knowledge
employment, and any other information as may be directed by the Labour Commissioner” Establish an “effective training programme to produce local employees to undertake duties of the non-citizen expert”
Challenges and successes?
Challenges and successes?
Challenges and successes?
Challenges and successes? With the coming into force of the Act and SUBSEQUENT ENFORCEMENT some criticisms has been leveled against the government - mostly those affected- – the eye of the beholder effect ? The question of skills gap and the time it takes to build such skills vis a vis instruments such as returns on employment of non-citizens Costs to businesses Quality of employees and services overtime However, ?? The need to incentivize reduction of high unemployment rate employment Preserve low skilled categories of jobs for locals
Challenges and successes? But any breach of international commitments? TZ is one of the countries that have committed to international treaties with a lot of caution TZ schedule of commitment is a testament to this effect
TZ has preserved for herself scope to self regulate as it can be established in its schedule
For the ‘same’ company which has commercial presence in another Member’s territory (Intra-corporate Transferees) To a consumer in the territory of another Member. The contract is made between the home and host companies (juridical contractual service supplier)
Who is a natural person?
natural persons seeking access to the employment market measures regarding citizenship, residence or employment on a permanent basis
footnote 1:differential visa requirements, not to be regarded as nullifying or impairing benefits under a specific commitment
Governed by horizontal commitments Absence of full liberalization Access mostly for those with high-level of training and expertise,
Specified duration of stay: 3 months to 5 years
Limited Categories of workers included Pre-employment requirements ENTs/LMTs Quotas Technology Transfer Residency and Nationality req. Training/Education/ Qualification Authorisation and registration req. Local Content
Political and Regulatory concerns and fears greatly affect levels of commitments under Mode Four Enforcement concerns and the problem of temporary entry leading to permanent entry Protection of labour markets associated with lower pay foreign services suppliers These fears and concerns are translated into Administrative practices, access to information and transparency Recognition of qualifications
Why Limitations under Mode 4
Political and Regulatory concerns and fears greatly affect levels of commitments under Mode Four ENTs: requirement that employers demonstrate to labor agencies their efforts to find local workers while offering at least prevailing or government-set wages—if they fail to find local workers, they are “certified” to employ foreign workers. Pre- admission requirement To obtain certification, employers will have to incur costs in placing ads seeking local workers for a specified period of time and keep a record regarding why local applicants were not hired, effectively closing the until the government certifies or agrees that foreign-service providers are truly needed. (QN: DATA AVAILABILTIY?)
Political and Regulatory concerns and fears greatly affect levels of commitments under Mode Four For post-admission requirement, employer attests or certifies that a foreigner is needed to fill the job and makes other assurances, such as promising to pay foreigners the higher of the minimum or prevailing wage and guaranteeing that the job is not vacant because
Treaty Establishing the EAC
In order to realise the stated objectives, the EAC Partner States set out to establish: Customs Union – Protocol signed in 2004 and came into effect in 2005, entry into force in 2010 Common Market– provided for in Art. 76 where Partner States committed to establishing free movement of labour, goods, services, capital, and the right of establishment – there is cooperation among PS in this area Protocol establishing the CM was signed on 20th November 2009 by the EAC Heads
Monetary Union Political Federation.
Treaty Establishing the EAC
Common Market– provided for in Art. 76 where Partner States committed to establishing free movement of labour, goods, services, capital, and the right of establishment – there is cooperation among PS in this area DOMESTIC REGULATION (Article 20 ) 1. The Partner States may regulate their services sectors in accordance with their national policy objectives provided that the measures are consistent with the provisions of the Protocol and do not constitute barriers to trade in
2. The Partner States shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner. (Discretion? – Right to regulate?)
Free movement of service Article 16
The Partner States guarantee the free movement of services supplied by nationals
Partner States within the Community. The free movement of services cover the 4 modes of supply : (a) from the territory of a Partner State into the territory of another Partner State: mode 1; (b) in the territory of a Partner State to service consumers from another Partner State: mode 2; (c) by a service supplier of a Partner State, through commercial presence of the service supplier in the territory of another Partner State: mode 3; and (d) by the presence of a service supplier, who is a citizen of a Partner State, in the territory of another Partner State: mode 4.
GENERAL EXCEPTIONS TO TRADE IN SERVICES (Article 21 ) 1. Right for Partner States to adopt measures (a) necessary to protect public morals or to maintain public order; (b) necessary to protect human, animal or plant life or health; (c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions on the free movement of services
Free movement of service Article 16 The Partner States guarantee the free movement of services supplied by nationals of Partner States and the free movement of service suppliers who are nationals of the Partner States within the Community. The free movement of services cover the 4 modes of supply : (a) from the territory of a Partner State into the territory of another Partner State: mode 1; (b) in the territory of a Partner State to service consumers from another Partner State: mode 2; (c) by a service supplier of a Partner State, through commercial presence of the service supplier in the territory of another Partner State: mode 3; and (d) by the presence of a service supplier, who is a citizen of a Partner State, in the territory of another Partner State: mode 4.