Is an African passport the right solution to SA's immigration problems?

Is an African passport the right solution to SA’s immigration problems?

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Enforcement

The home affairs department has warned that it has begun enforcing the law by conducting regular audits on employers to ensure that they comply with the regulations. This puts the onus on companies and organisations to ensure all their expatriate employees are correctly documented before they begin work.

According to one source, South Africa – about six times larger than the United Kingdom – has only 600 inspectors to service the entire country. Yet, about 3000 British inspectors cover the London area alone. Comparing the numbers, this makes the interception of illegal immigrants at border posts, the monitoring of foreigners within the country – legal or not – and the tracking of those who are undocumented or have overstayed their welcome a real and notable challenge for the department.

Agreeably, the home affairs department should make provision for any permit application that is being made, however it is evident that the high volumes are becoming strenuous for the department. By considering this and that the home affairs department is poorly funded by the government, grossly understaffed and the large influx of applications they receive on a daily basis, this enforcement is perhaps an attempt to improve the current immigration system and identify possible areas of improvement.

Is there a better way?

In contrast, many representatives of the African Union, of which South Africa is a member, are calling for an African passport that will facilitate freedom of movement across the continent. Such a system would certainly do away with the high cost and manhours needed to legislate and control the situation, but is it the right solution for South Africa?

One could look to the European Union whose members, in an effort to promote free trade, have allowed their people to move easily from one member country to the next. However, this freedom has an unwelcome side effect because it makes it easier for terrorists to find their way to target countries from those states with poor entry control. We see the tragic results regularly in news reports. Thankfully, South Africans have yet to experience a foreign terrorist attack on their soil. However, lacking our resources, this may be attributed in some degree to our conservative outlook on immigration.

This is not to say that we should take a Trump-like view of immigration or rule out the possibility of opening our borders one day.

The government and business certainly welcome expatriates who enter the country legally and bring with them the critical skills so urgently needed to be competitive in the global market. But today is not the right day, not for our society, our economy nor our national security.

Until then, the law remains and every organisation is obliged to ensure its foreign workers are employed legally and in compliance with the conditions of their visas.

Government and business alike certainly welcome foreigners who enter the country legally and bring with them the critical skills so urgently needed to be competitive in the global market.

Becoming compliant

Considering the above, it is important that employers make provisions and ensure that they are adhering to the law, advisably by keeping a copy of the Act at hand.

Will the home affairs department be able to check on every business to ensure they adhere to the law? Perhaps not, but with the consequence of a stiff fine or up to one year of imprisonment hanging over the heads of each company leader, HR manager or person responsible for employing the illegal foreigner, few will take the chance of a random inspection arriving at their door. Even for those who employ foreign nationals at much lower rates than local workers regardless of their visa status, the risk is not worth it.

This is compounded by the fact that the department has laid out definite plans to upgrade its systems and services following the implementation of the white paper on international migration, which is said to be concluded imminently, the department envisages to become completely digital by 2020. Organisations should start working towards complete compliance as soon as possible.

Getting help

As a first step, employers are advised to carry out a comprehensive audit of all their foreign national employees, bearing in mind that the law will assume they knew of any irregularities at the time of hiring and will be held accountable accordingly.

There are a number of expatriate services agencies in South Africa who offer visa checks and assistance with the necessary applications and corrections where required and can certainly make the process less burdensome. It also adds weight to an organisation’s case that they engaged an impartial third party, especially when an undocumented employee is discovered in theirs ranks.

SA looking at ways to simplify travelling with minors: Gigaba

SA looking at ways to simplify travelling with minors: Gigaba

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Current regulations introduced in 2015 state that if the minor is accompanied by one parent, there must be an accompanying affidavit from the other parent.

“We also looked at further simplification of the further requirement to travel with minor children. In that regard, we have tasked our respective teams to look at various measures that will make it easier for people to travel with minor children without compromising the security of children,” Gigaba said.

“We believe that there are a number of measures we can take, including looking at the best international practice that can assist us in this regard,” he added.

Source: eNCA

In-house Immigration Engagement Accountant

Immigration Engagements Accountant to Compliment Business Visa Service

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Amendments to the Immigration Act No.13 of 2002 make it possible for an Immigration Engagements Accountant to issue certificates for Business Visa purposes. Whereas before only registered CA(SA) could perform this function.

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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