In today’s dynamic labour market, the hiring of foreign nationals can provide organisations with valuable skills and diverse perspectives. However, with this opportunity comes a significant responsibility in ensuring compliance with South Africa's immigration laws.
The Immigration Act 13 of 2002 (as amended) places stringent obligations on employers, particularly regarding the verification of work visas, permits and the employment status of foreign workers. In the unfortunate event of a workplace raid by the Department of Home Affairs (DHA), Department of Labour and the South Africa Police Services (SAPS), employers and recruiters must be prepared to demonstrate compliance, if this is not done the employer shall be guilty of an offence.
The legal obligations placed on employers regarding foreign nationals are primarily encapsulated in the following sections of the Immigration Act:
- Section 38(1): This section states unequivocally that no person shall employ an illegal foreigner. This mandates employers to ensure that all foreign employees hold valid work visas and permits.
- Section 49(3): This provision makes it an offense to knowingly employ an illegal foreigner or a foreigner in violation of the Act. Employers can face significant penalties, including fines and potential criminal charges for non-compliance.
Given the gravity of these provisions, employers must make a good faith effort to verify the work status of all foreign employees. This is where structured due diligence and meticulous recordkeeping become crucial to ensure compliance and to be prepared in case of a workplace raid.
Employers and recruiters should implement the following due diligence practices:
Document Inspection and Verification: Recruiters and Employers must carefully examine all documentation presented by foreign employees. This includes scrutinising work visas, permits, passports, and any other relevant identification for signs of tampering or inconsistencies. It is essential to verify the authenticity of work permits with the DHA or VFS Global, this can be done by using an official verification partner. This step confirms that the documents are legitimate and that the foreign national is legally authorised to work in South Africa.
Record Keeping: Maintaining comprehensive records is vital. Employers should keep copies of the following documents as proof of compliance which must be available at any time to the DHA:
§ A certified copy of the foreign employee's passport, reflecting their personal details.
§ A certified copy of the relevant visa or permanent residence permit.
§ Proof of the capacity in which the employee is employed, ensuring it aligns with the terms of their visa.
§ A copy of the foreign employee's IRP5 certificate of earnings and job description.
§ Copies of all official verification checks done by the employer or recruiter.
Monitoring: Implementing a system to track visa and permit expiration dates is critical. Employers should set reminders for renewals well in advance of the expiration date to ensure that all foreign employees maintain legal work status.
Written HR Policies: Establishing clear company policies regarding the hiring of foreign nationals and document verification procedures is essential. These policies should detail the responsibilities of staff involved in the hiring process.
Employers have ongoing obligations even after a foreign employee’s employment is terminated:
Notification of Termination: Employers must inform the DHA of the termination of a foreign employee’s employment. This helps maintain accurate records and reduces the risk of compliance issues.
Reporting Breaches: If a foreign national breaches their status in South Africa, employers are required to inform the DHA. Timely reporting can mitigate potential penalties.
Retention of Records: Employers must maintain records of foreign national employees for at least two years following their termination of employment. This includes all documents related to their employment, such as contracts, work visas and permits, verification checks and all communication with the DHA.
In the face of potential workplace raids, employers and recruiters in South Africa must prioritise due diligence and recordkeeping to ensure compliance with immigration laws. By implementing structured processes for document verification, maintaining accurate records, and adhering to post-employment obligations, organisations can significantly reduce their risk of legal repercussions.
As regulations continue to evolve, staying informed and proactive in compliance efforts will not only protect businesses from penalties but will also contribute to a more ethical and transparent hiring process. Ultimately, fostering a culture of compliance not only safeguards the organisation but also enhances its reputation as an employer or recruiter of choice in a diverse labour market.
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Written by: Danielle Statham