INSIGHT
CLAMPING DOWN
ON ILLEGAL IMMIGRANTS
By Marisa Jacobs
It is now a matter of when and not if companies employing foreign nationals will be audited by
the Department of Home Affairs.
T
he arrest of at least 25 illegal foreign nationals
at the beginning of May by the Cape Town
Police, accompanied by officials from the
Department of Home Affairs (DHA), sparked
a scramble among the local business community, who
are concerned that they may unknowingly be employing
foreigners who are working in the country illegally.
Considering these recent arrests, human resource
professionals, managers, business owners, and CEOs
need to make sure that expatriates are legally employed
within their business.
The DHA has warned that they will be increasing
the number of audits and investigations among South
African companies that employ foreign nationals. This
isn’t an empty threat, and they are clamping down on
foreign nationals who contravene the Act and employers
who are illegally employing foreigners. Anyone who is
deemed responsible for the appointment of the person
could face repercussions. This means that everyone from
HR managers to CEOs could face fines or imprisonment.
Pitfall number one
Making sure that an employee’s job title matches the
title on their work visa is a vital step to ensure that
foreigners are complying with the Act. It can happen
that a company employs a foreign national and that the
employee is promoted or moved within the business.
When an employee changes jobs and their job title or
position changes, their work visa may no longer comply
with the conditions thereof. The process to update
the visa so that it is in line with the work contract is
relatively simple and straightforward, but it is a step that
many employers overlook, and this can put them at risk
of non-compliance.
40 _ QUARRY SA | JULY/AUGUST 2018
Pitfall number two
If a company has employed a foreign national already
in possession of a visa, it may not know if the worker’s
visa is legitimate, whether it was obtained in the correct
manner, or even if it was issued by the DHA.
In this case, we recommend that employers contact
the DHA to check what information is on the system.
This additional check, beyond looking at a work visa, is
needed to ensure compliance with the Act.
Pitfall number three
Another potential pitfall that companies should take
note of is the condition relating to the transfer of skills.
Certain categories of work visas for foreign nationals
stipulate that the skill that is being imported needs to
be transferred to local citizens. If a company is audited
by the DHA, the company may be asked to present their
skills transfer plans.
One of the main reasons South African businesses
employ foreign nationals is because we do not
have the skills, knowledge, or expertise within our
borders. Having a skills transfer plan in place is a
great opportunity for local employers to upskill their
employees and give them an opportunity to learn from
foreigners so that they can cultivate the skills that are
needed within their business as well as the country.
Besides requesting a copy of the company’s skills transfer
plan, the DHA may further request to interview people
who have been earmarked to learn from the foreign
nationals. ■
ABOUT THE AUTHOR
Marisa Jacobs is an immigration specialist at Xpatweb.