No. 16: South African Immigration Law: A Gender Analysis

One of the last pieces of apartheid-era legislation to disappear from the South African statute books was the Aliens Control Act of 1991. Although amended in 1995, this Act was finally consigned to history only in March 2003, when the draft regulations implementing the new Immigration Act (no. 13 of 2002) came into effect (Republic of South Africa 2002 and 2003). While there is much in the new Act to be welcomed, and it certainly represents the advent of a more just and pragmatic immigration regime, many of its provisions give considerable cause for concern on gender grounds. The Act is carefully gender-neutral in its terminology and without any explicit gender discrimination in its definitions and clauses. Yet in practice, and through a variety of means, it will not only discriminate against certain individuals on the basis of their gender, but also create numerous problems for the personal and family relationships of male and female migrants. As a well-established body of literature testifies, this situation is by no means unique to South Africa (for a sample see Morokvasic 1984; Bhabha et al. 1985; Simon and Brettell 1986; Fincher et al. 1994; United Nations Secretariat 1995; Fincher 1997; Kofman and England 1997; Kofman 1999; Hyndman 1999). The observation made by Brettell and Simon almost two decades ago holds equally true today: There is no denying the importance of official policy, or the lack of official policy, in influencing the nature of immigration streams… – whether they are legal or clandestine, predominated by single or married migrants, by men or women, by workers or dependents. Even the auspices under which individuals emigrate – with the aid of kinsmen or friends, or with labor contracts – differ according to official policy. (Brettell and Simon 1986 p. 6) Indeed given that migration is such a gendered process, no country has succeeded in putting in place immigration legislation or policy that is entirely gender-neutral in effect. Immigration rights are typically attached to legally-defined and – sanctioned social or biological relationships, such as spouse, dependant or family status, so that gender and gender relations inevitably play a part in determining who is admitted to a country, for how long and under what conditions. Nor is it unusual for the conditions of ‘family’ or ‘dependant’ migration to include a prohibition on work – a prohibition that in most countries affects more women than men. With regard to employment-related migration, whether people in this category are admitted as permanent residents (e.g. Canada) or temporary ‘gastarbeiter’ (e.g. Germany) is an important determinant of the demographics, including the gender and marital status, of the migrants involved. Just as spousal or family immigration status often prohibits the holder from seeking employment, individuals admitted to a country as temporary residents for employment purposes are commonly prohibited from bringing their spouses or other family members with them. Of course labour, like migration, is itself profoundly gendered, with particular sectors, levels and forms of employment being associated with predominantly male or female workers in particular historical and geographical contexts. ‘Labour’ (or ‘skills’) and ‘family’ criteria for determining immigration rights can thus act in numerous ways, separately or in conjunction, to discriminate against one gender or another, and to create gender-biased or even gender-specific migration streams. Changes in immigration policy and legislation therefore have the power to shape and alter the gendering of migration in significant ways, and can have a dramatic effect on the lives and relationships of the men, women and families involved. In South Africa, one of the more invidious provisions of the old Aliens Control Act was that it gave residence rights to the foreign wives of male South African citizens but not to the foreign husbands of female South African citizens. This overt gender discrimination was eliminated when the Act was amended after the post-apartheid constitution came into effect in 1994. However, as this paper will argue, the new Immigration Act will perpetuate other, more subtle, but equally potent forms of gender discrimination, and will ultimately serve to entrench rather than erode a long-standing tradition of male-dominated regional labour migration