An introduction to immigration compliance for employers

In this introductory episode, Lee Masuku and Taryn York in Employment Law practice and Immigration Law service offering, unpack key aspects of the Immigration Act, including an employer's obligations on the employment of foreign nationals and the duties imposed on foreign nationals

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Transcript

Lee Masuku: Welcome to the CDH Conversations podcast. My name is Lee Masuku, a Senior Associate in CDH's Employment Law Department. Joining me today in conversation is Taryn York, also a Senior Associate in our Employment Law Department. Both Taryn and I are involved in the immigration offering at CDH. Taryn, thank you for making time to have a discussion with me today.

Taryn York: Thank you for having me, Lee.

Lee Masuku: So, immigration law, and particularly the employment of foreign nationals, has been a bit of a hot-button topic of late, wouldn't you say, Taryn?

Taryn York: Yes, that's correct, Lee. There have been quite a few initiatives that the Department of Home Affairs is introduced over the past few years in relation to the employment of foreign nationals.

These include the introduction of a remote working visa category as well as the trusted employer scheme and some which are still to be implemented, like the new meets and stages visa initiatives for the film tourism and sports industries.

Lee Masuku:  Yes Taryn, South Africa's immigration laws and systems have certainly experienced some rapid change in development over the last few years, which one may say is reflective of the country's growing role in the global economy, and its increasing diversity.

What this then means is that it is important for employers specifically to understand this complex matrix of South African immigration laws and regulations. Now in order to understand the legal framework around the employment of foreign nationals in South Africa and the new initiatives introduced by the Department of Home Affairs.

This is one of a few podcasts in a series that Taryn and I will be doing as a basic guideline for employers. Let's talk then about that. What at a high level, Taryn does the legislative landscape look like in South Africa in relation to immigration law?

Taryn York: So, the detailed conditions governing the admission and residents of foreign nationals is regulated by a system of entry, which is administered by the Department of Home Affairs and governed by the Immigration Act 13 of 2002, as well as the regulations to the Immigration Act.

These are the primary pieces of legislation governing immigration law in South Africa.

Lee Masuku: Yes, so the admission of foreign nationals into the national territory of a state takes place under domestic jurisdiction. So every sovereign state like South Africa has the right to determine whether or not to admit foreign nationals into its national territory and which foreign nationals to admit and under which conditions.

Taryn York: Absolutely Lee and its fairly common practice to impose certain restrictions on the participation by foreign nationals in the national economy, such as the right to conducting working activities within the borders of South Africa. The Immigration Act also regulates a foreign national's right to work in South Africa and identifies the types of work visas that authorize foreign nationals to work in South Africa.

Lee Masuku: And speaking of the rights to work Taryn, what exactly does it mean to work in South Africa?

Taryn York: Well, in terms of the Immigration Act work includes conducting any activity normally associated with the running of a specific business or being employed or conducting activities consistent with being employed or consistent with the profession of the person.

Now, this is with or without remuneration or reward within the boundaries of South Africa. This definition is quite broad, and what it essentially means is that any foreigner conducting work or business in South Africa requires a work visa to do so.

Lee Masuku: So just to pause on that, Taryn, now when we speak about the right to work, what we mean is that the foreign national concerned must be issued with an underlying visa or permit that authorizes them to work in South Africa.

Is that correct?

Taryn York: Yes. That's correct Lee. And it's important for employers to understand what could happen should they employ a foreign national who does not have the right to work in South Africa, such as the imposition of fines or imprisonment upon conviction.

Lee Masuku: Yes, Taryn. That's because the Immigration Act places a prohibition on employers employing illegal foreigners, which means those foreigners who do not have the right to work.

And then the Immigration Act also contains certain offenses that an employer may commit in failing to comply with this prohibition.

Taryn York: Yes, Lee. And that's why it's important for employees to understand the consequences for them and the employees of the expiry of their permits or visas, as well as understanding what the consequences are for overstaying in South Africa after the expiry of one's permit or visa.

However, that topic we will deal with in episode four of our immigration podcast series. That being said, Lee, what are some of the employer's general obligations in terms of the Immigration Act.

Lee Masuku: So, the Immigration Act provides that no person shall employ firstly, an illegal foreigner, which in other words means a foreigner who is in South Africa, in contravention of the Immigration Act. Secondly, no one may employ a foreigner who status does not authorize him or her to be employed by such person. And what we mean by this is where the foreign national does not have specific authorization to work in South Africa. On this point it is important to know that not every visa issued in terms of the Immigration Act automatically authorizes a foreign national to work in South Africa.

Specific authorization is required to work in South Africa, and then lastly, no one shall employ a foreigner on terms, conditions, or in a different capacity from those contemplated in a foreigner status. In other words, where that foreigner is limited to working for a specific employer and within a specific position.

Taryn York: That's right Lee and the Immigration Act further places an obligation on an employer to make a good faith effort to ascertain that no illegal foreigner is employed by him or her. What this obligation requires is for an employer on face value to satisfy itself that it does not employ any foreign national in the circumstances that you have just mentioned.

In order to discharge this obligation, employees must ensure that all foreign employees are in possession of a work visa, that the conditions of the work visa allow the foreign national to work for them without limitation and that the work visa or permit has not expired. Now that we've spoken about employers, Lee.

Tell me, are there any obligations on foreign nationals to comply with in terms of the Immigration Act?

Lee Masuku: Yes, there are Taryn.  So apart from having to produce a valid passport all foreign nationals who enter South Africa must be in a position to produce a valid visa or permit to an immigration official on demand.

That visa or permit must contain a statement to the effect that the hold of the passport in question has ministerial authority to enter the country. Foreign nationals are also required to abide by the terms and conditions of their status, including any terms and conditions attached to their visa or permanent residence permit and depart South Africa upon the expiry of their status.

Lastly, if foreign nationals want to continue working in South Africa, they need to ensure that their work visas or permits are renewed timelessly.

Taryn York: Thanks Lee and the precise categories of visa and permits and those which allow foreign nationals to work in South Africa are topics that we'll be discussing in episodes two and three of our podcast series.

Just to close off our discussion today, Lee, is there another piece of legislation governing foreign nationals in South Africa?

Lee Masuku: Yes, Taryn. So quite briefly, the other piece of legislation that deals with foreign nationals is the Refugees Act 130 of 1998, which more specifically deals with the rights of Asylum Seekers and Refugees.

It's quite important to understand that there's a slight nuance between these two categories of person. Isn't that correct Taryn?

Taryn York: Yes, so an Asylum Seeker is essentially a person who is still seeking recognition as a refugee in South Africa. Were as a refugee, is a person who has been granted asylum in terms of the Refugees Act.

Lee Masuku: Thank you, Taryn, for your time. Looking forward to meeting for episode two, where we will be discussing the various temporary visa categories available in South Africa.

Taryn York: Thank you, Lee, and until we meet again.