Employment (section 38)
This section deals with duties and obligations where there is employment involved – typically issues affecting people with visas and permits in the business categories.
The section states that no person shall employ an illegal foreigner, a foreigner whose visa status does not allow him or her to be employed, or a foreigner on terms and conditions different from those in the foreigner’s visa status.
An employer must make an effort to ascertain that no illegal foreigner is employed by them, and find out the status of those who they employ; this normally takes place at the job interview stage. Any employer who employs more than five employees has a stricter compliance requirement, and any employer who employs a foreigner must keep the associated records for two years after termination of employment and report to the Department of Home Affairs when the employment is terminated. They must also inform Home Affairs if there has been any breach of status of the foreigner.
Key Issues
Certain presumptions in the Immigration Act require caution. If immigration inspectors find illegal foreigners on the premises of an employer, they are presumed to be employed by the person who has control over the premises, unless evidence exists to the contrary.
This has previously led to situations in which wrongful arrests of managers were made where business owners were in fact responsible.
Learning Institutions (section 39)
This section states that no learning institution may knowingly provide training or instruction to an illegal foreigner, a foreigner whose visa status does not allow him or her to receive training or instruction, or a foreigner on terms and conditions different from those in the foreigner’s visa status.
If an illegal foreigner is found on the premises where training or instruction is provided, it is presumed that they are receiving training or instruction by the person who has control over the premises unless there is evidence to the contrary.
Identification (section 41)
This section relates to the powers of an immigration officer.
When an immigration officer requests it, any person must identify him- or herself as a citizen, permanent resident, or foreigner. If the immigration officer (or police officer) is not satisfied that the person is entitled to be in South Africa, they may be interviewed about their identity or status, and they may be taken into custody without a warrant. The immigration or police officer will take reasonable steps to assist the person to verify their identity or status, and if necessary they may be detained in terms of section 34. This assistance would involve such activities as letting the person fetch a document at home, or checking with Home Affairs.
Any person who assists someone in evading the processes of identification, or interferes with the process, is guilty of an offence.
Aiding and abetting illegal foreigners (section 42):
No person must aid or help any illegal foreigner, save for necessary humanitarian assistance.
This includes:
providing or allowing instructional training
issuing a license or authorisation to conduct business or carry on a profession or occupation
entering into any agreement for the conduct of business, or carry on a profession or occupation
conducting any business or carrying on any profession or occupation in cooperation with a foreigner
assisting or helping with the conduct of business, profession or occupation.
Helping to get a license
harbouring an illegal foreigner
selling or letting any house (immovable property) to an illegal foreigner.
Key Issues
The courts have decided that the definition of humanitarian assistance is very wide – including the rights of protection to someone who is an illegal foreigner, and to enter into an employment agreement with an illegal foreigner who must be treated fairly within that agreement (right to dignity).
Many people are waiting for status documents to be confirmed through the asylum and refugee system. These documents will allow them to study, work and conduct business. The inefficiency of dealing with the issuance of these documents have left people without this status technically illegal.
Obligations of foreigners (section 43)
The holder of a visa or permanent residence permit must abide by the terms and conditions of their status, including any attached to the visa or permit upon its issuance.
This technically means that, where there is a minor infraction, the foreigner’s visa or permit expires. If this about to occur, a notice is issued which informs the foreigner that a potentially adverse decision is about to be made. They are invited to appeal the decision. This “appeal” period normally allows for 10 days.
The other main obligation is that a foreigner must depart the country when their visa expires. If they do not depart, they are overstaying; this constitutes an offence.
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Best wishes Leon Isaacson, CEO, Global Migration Group