growing number of undocumented migrants. Deported individuals often return almost immediately to South Africa, underscoring the limitations of the deportation policy.18 Foreign migrants on farms in South Africa Agriculture in South Africa is a major employer of foreign migrant labor.19 While the number of people employed in regular and seasonal employment on commercial farms has declined, there has been an increase in the employment of foreign migrants since 1990. Farms in border areas in particular employ foreign migrants, who tend to concentrate in border areas or where major migration routes cross commercial farming districts. Hence migrants from Lesotho are found concentrated in the Free State, Mozambicans in Mpumalanga and in the south and southeast of Limpopo province, and Zimbabweans in the northern part of Limpopo province. Many foreign farm workers have worked on farms for extended periods of time. The 1996 Farmworkers Research and Resource Project survey of farm workers, the first attempt to document conditions on South African farms, concluded that over 50 percent of “immigrant farmworkers” had been on the farm for more than five years, about 16 percent for 11-20 years, and some 10 percent for more than 20 years. These findings suggest, as Jonathan Crush notes, “a long-standing pattern of permanent farmwork and residence in South Africa by non-South Africans.”20 The data on foreign farm workers also blur the distinctions between permanent residents, temporary residents, and illegal residents, insofar as these categories rest on assumptions about temporary residents and illegal residents—unlike permanent residents—having “only a tenuous link” with South Africa. Precisely such an assumption undergirds an important component of the reasoning behind the Constitutional Court’s 2004 judgment in the two cases in which permanent residents challenged certain provisions of the Social Assistance Act, 1992 (No. 59 of 1992).21 The Constitutional Court ruled that the provisions that reserved 18 Southern African Migration Project (SAMP), “Making Up the Numbers: Measuring “Illegal Immigration” to South Africa,” Migration Policy Brief No.3 (SAMP, 2001), p. 12. 19 This paragraph draws on Human Rights Watch, Unequal Protection: The State Response to Violent Crime on South African Farms (New York: Human Rights Watch, 2001), pp. 52-62; and Jonathan Crush, “Making Hay with Foreign Farmworkers,” in Jonathan Crush, ed., Borderline Farming: Foreign Migrants in South African Commercial Agriculture, Southern African Migration Project, Migration Policy Series No. 16 (Cape Town: Idasa and Queen’s University, Canada, 2000), http://www.queensu.ca/samp/sampresources/samppublications/policyseries/Acrobat16.pdf (accessed July 9, 2006), pp. 3, 5-7. 20 Crush, “Making Hay with Foreign Farmworkers,” in Crush, ed., Borderline Farming, p. 5; and see also p. 2. 21 Constitutional Court of South Africa. Louis Khosa v. Minister of Social Development, Case CCT 12/03 and Saleta Mahlaule v. Minister of Social Development, Case CCT 13/03 (henceforth referred to as Khosa v. Minister of Social Development), para 59: “It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, who have only a tenuous link with this country. The position of permanent residents is, however, quite different to that of temporary or illegal residents. They reside legally in the country and may have done so for a considerable length of time. Like citizens, they have made South Africa their home. While citizens may leave the country indefinitely without forfeiting their citizenship, permanent residents are compelled to return to the country (except in certain circumstances) at HUMAN RIGHTS WATCH VOLUME 18, NO. 6(A) 10