Immigration: Foreign Employees and the Employer

The employment of foreign nationals by business owners are fairly common practise in current times.  However, not all such business owners are aware of their obligations to comply with the provisions of the applicable laws, and more specifically the Immigration Act 13 of 2002 (“the Act”).

A foreigner may enter and sojourn in the Republic of South Africa only if in possession of a visa issued by the Director-General for a specific period. (Section 10(1) of the Act).

Once being issued with such a visa, the foreigner becomes a ‘temporary resident’ of the Republic of South Africa, and only, for the period prescribed in the visa. However, the mere fact of having the status of a temporary resident, does not necessarily entitle the foreigner to be employed and/or conduct any form of work in the Republic.

When employing a foreigner, the employer needs to be certain that the potential employee has been issued with one of the following temporary residence visas provided for in Section 10(2) of the Act:

  • Critical Skills Work Visa
  • General Work Visa
  • Intra-Company Transfer Work Visa
  • Section 11(6) Visitors Visa

Section 38 of the Act regulates the employer’s duties and it specifically states that no person shall employ:

  1. an illegal foreigner;
  2. a foreigner whose status does not authorise him to be employed within the Republic;
  3. a foreigner on terms, conditions or in capacity different from those contemplated in such foreigner’s status;

The law places a good faith obligation on employers to ensure that they do not employ illegal foreigners and to make sure that their legal status does not lapse whilst employed.

Under the Act the employer is also obliged to keep relevant records of foreigners employed, for a period of two years after termination of their employment.

Upon termination of a foreigner’s employment, an employer must report such termination to the Director-General. The employer must also report any breach of status by the foreigner.

It is important to note that an employer will be held liable for any foreigner on their premises, whether employed or not. In terms of Section 38(5) of the Act, if an illegal foreigner is found on any premises where business is conducted, it shall be presumed that such foreigner was employed by the person who has control over such premises, unless prima facie evidence to the contrary is adduced.

If it is proven that an illegal foreigner is employed it shall be presumed that the employer was in fact aware of the foreigner’s illegal status.

In such a case an employer should prove the following in accordance with Section 38(3):

  • that the employer employed the foreigner in good faith;
  • that the employer made a good faith effort to ensure that no illegal foreigner is employed by him;
  • that the employer made a good faith effort to ascertain the status or citizenship of those in his employ

Stricker compliance shall be required of employers who have more than 5 employees and especially employers who have previously been found guilty of an offence under Section 38 of the Act.

In terms of Section 49(3) of the Act, anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment of up to one year.

If you are found guilty of committing the same offence for a second time, your second offence shall be punishable by imprisonment of up to two years or a fine.

In the case that you are found guilty of this offence for a third time, your punishment will be subject to imprisonment of up to 5 years without the option of a fine.

With the gross consequences of non-compliance being stipulated above, it is safe to say that it is of paramount importance that employers take it upon themselves to ensure that all their employees have valid temporary residence visas that permits them to work within the Republic.

It is advisable for employers to furnish all their employees − regardless of their nationality − with employment contracts that align with our Immigration laws. Keep in mind that not having a written employment contract does not in any way affect the validity of the employment arrangement. Having all employees sign written contracts creates consensus around which practices or behaviour are acceptable and which are not. Include valid visa’s which permit work in the Republic as a condition of employment. Do not offer employment for longer periods than the period stipulated on the foreigner’s visa. Rather offer a renewal of their employment contract upon furnishing you as the employer with proof of a renewed visa.

Contravening the Act by employing illegal foreigners puts the integrity of the employer and the whole company at risk.

Chanica Viljoen is an attorney in the Immigration Law department at Barnard Incorporated in Centurion.

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