Department of Home Affairs to enforce legal immigrant employment

Department of Home Affairs To Enforce Legal Immigrant Employment

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He made this statement while presenting at a recent event, alongside Moeketsi Seboko, Immigration Manager of Xpatweb, to highlight the latest updates and expected changes within the DHA, as well as the expectations of South African companies employing foreign nationals.

This follows the DHA having picked up several incidents of companies employing foreign nationals without proper vetting of the required work visas.

Makhalemele also urged employers to keep a copy of the Immigration Act, no 19 of 2002, as amended (the Act) on their premises to ensure that they are adhering and complying with the stipulated regulations when employing foreign nationals.

The Act evidently states that an employer may under no circumstances employ a foreign national without the correct visa. Although employers may never be certain on the validity of their foreign employees’ visas, it is recommendable to do an immigration audit to ensure they are currently compliant and that the necessary policies are put in place so that correct processes are followed with new foreign national employees.

Closing the gap

Makhalemele further noted that the immigration system in South Africa is no longer purely dictated by the DHA and appealed to employers to give their input and cooperation to enable continuous improvement and thereby position the country to reach its economic goals.

After all, foreign nationals play an important part of the country’s success by bringing in the necessary skills required for high-demand projects. It is therefore imperative that employers understand the importance of their role within the South African Immigration law.

Employer Duties and Obligations

Makhalemele placed emphasis on the ‘Duties and Obligations’ of employers, reiterating that entities employing foreign nationals without the required valid work visa are viewed by the Department as knowingly “aiding and abetting” the illegal foreigner on their premises and will therefore be liable to certain penalties.

Presumably, the person whom will be deemed responsible for the aforesaid implications, will be the Human Resource Manager and/or the person responsible for the company.

Click here for the Immigration Act
Click here for the presentation by Ben Makhalemele
Click here for the presentation by Moeketsi Seboko

Department of Home Affairs to Enforce Legal Immigrant Employment

Home Affairs to enforce legal immigrant employment

Employing Expatriates

Employing Expatriates? – Duties and obligations of South African Employers

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WHAT ARE THE EMPLOYERS’ RESPONSIBILITIES?

In addition to ensuring a lawful work visa for the appropriate foreigner has been obtained, the employer is further responsible to ensure that they, as an organisation adhere to the responsibilities when employing a foreign national as per the Immigration Act of 2002, as amended (The Act).

The Act in Section 38 stipulates as follows –

“No person shall employ –

  1. An illegal foreigner;
  2. A foreigner whose status does not authorise him or her to be employed by such person; or
  3. A foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.”

In a nutshell, the Employer is responsible to ensure that the foreign employee, holds and maintains the necessary, appropriate and valid work visa and complies with any and all conditions imposed there upon. Accordingly, it is essential that the expatriate at all times complies with the conditions and validity of his/her visa ensuring it coincides with his/her job title, employer and intention whilst in South Africa.

In the event that an employer wishes to employ a foreigner who does not hold a valid visa, sensibly it will be the employer’s responsibility to ensure that the relevant visa is obtained prior to the commencement of employment – the employer may sponsor the process to ensure the visa is obtained in a timely and lawful manner.

WHAT IF THE EXPATRIATE IS PROMOTED OR HIS JOB TITLE CHANGES?

Work visas, regardless of the category, will in most cases contain the job title of the expatriate as a condition to the visa i.e. the visa is conditional on him/her being employed in a certain position. When his/her job title thus changes, whether due to restructuring, a promotion etc. the employer is required to apply for a change of conditions. The Department will then issue a new visa with the new job title assuming that the candidate still complies with all statutory requirements.

HOW DO EMPLOYERS KNOW IF THEIR EMPLOYEES HOLD VALID VISAS?

Understandably, where the employer was not involved with the visa application process directly or through their service provider, there may be uncertainty in terms of the validity of their foreign employees’ visa as often it wouldn’t be within their spectrum of knowledge. Should this however be the case, employers may approach an Immigration firm and/or the Department of Home Affairs (DHA) directly to verify the visa in question.

EMPLOYEES WITH INVALID VISAS – WHAT NOW?

Every so often, employers find themselves in unprecedented situations whereby their foreign employees hold fraudulent visas and/or no visa at all.

It is important that the employer approaches the situation in a correct and timely manner by –

  1. Reporting to the DHA any breach from the foreigner’s side of his or her status; and/or
  2. Reporting to the DHA that the foreigner holds (or does not hold) a valid / invalid / fraudulent visa and the organisation and is willing to rectify the matter by assisting the foreigner with obtaining the necessary work visa.

WHAT ARE THE CONSEQUENCES?

It is worth noting that should the employer not adhere to the responsibilities as set in terms of the Immigration Act, the corporation will face penalties applicable to the breach of regulations –

  1.  Applicable fine to the corporation as determined by the court; or
  2. Imprisonment to the responsible person of the corporation – duration to be determined by the court; and
  3. The corporation will further be included on the DHA’s ‘watch-list’ and subject to regular inspections by the Department to ensure they comply to their required obligations with future foreign employees.

It is thus vital for employers to become more vigilant pertaining to the responsibilities that are required when employing a foreigner, as it could become a nail-biting experience.

Click on the button below to view more on the responsibilities of an employer – extract from the presentation by Department of Home Affairs, Ben Mahlamele.

View Presentation on Immigration Compliance

IMG breakfast with Ben Makhalemele and Moeketsi Seboko

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They presented on the latest developments in immigration. It was informative with great feedback. If you missed it please click on the links below for the presentations, video footage to follow shortly. Ben Makhalemele – Assistant Director, Department of Home Affairs
Bruma Office Closing Down

Bruma office closing down

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The last day of submission at the VFS in Bruma is 2 March 2018.

All applicants will be required to submit their applications at the VFS Global Centre located in Rivonia, from 02 April 2018.

Collections

The last day of collections at the VFS Office in Bruma is 1 March 2018 and following this day, all collections will be facilitated through the VFS Global located in Rivonia, where same will be required to be collected.

Zimbabwean Exemption Permit (ZEP) Extensions – Closed 15 February 2018

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This extension allowed Zimbabweans who held the initial ZSP’s to submit any/all supportive documentation and outstanding payments pertaining to their extension applications.

Statistics show that by 29 January 2018, 176 605 applicants had already completed the process. Applications are expected to be finalised by end September 2018, whereby the receipt of submission ought to bear evidence that the necessary extension has been applied for.

Please click here for more information.