Who is defined as an illegal worker?

SA Migration | 10 March 2023

Who is defined as an illegal worker?

1. A person who has not entered South Africa through one of its official ports and presenting the necessary documents.

2. A person who is not undertaking the same job as endorsed in the visa.

3. A person who is not using a work permit in SA.

Can you employ someone without a work permit?

No, you are not allowed to employ someone without a South African work visa as this is illegal and the company or person can be fined or face imprisonment. The responsibility falls on the employer when they decide to employ a foreigner and the law does not penalize the foreigner for accepting or working with no visa.

It’s not an offence when you do the following:

• Accepting a job offer with a visa

• Signing a contract without a visa

Employers must remember that a foreigner who is employed without a work visa or whose work visa expires during his or her employment is still regarded as an employee of the company. The labour relations act stipulates that an employer may not dismiss a foreigner due to an expired visa or who is employed without a work permit.

An accompanying spouse may not work in South Africa, therefore there is no accompanying spouse work permit in South Africa. Accompanying spouses must apply for their own work visas.

Therefore it’s best to ask the foreign applicant whether he or she is in the process of applying for a visa or the company can offer to assist the person in obtaining a work visa, provided they qualify for a South African work visa. This way the employer is not held responsible and caught off guard when the Department of Home Affairs investigates the company or the foreigner. You should not assist a foreigner if they are illegal.

Employers need to verify the immigrant’s status when they produce a work visa and our guide: “How to spot a fake work permit in South Africa“, this guide will give you all the tips you need to look for when looking at a visa.

If the applicant does not qualify for a visa, the next option would be for them to apply for an asylum or refugee visa but this can take a while before they the visa for this.

What are the visa options for applicants?

1. General work visa South Africa (How to apply for a general work permit in South Africa)

2. Intra company transfer visa

3. Critical Skills Visa

4. Corporate Workers Visa

What are the consequences of hiring illegal immigrants in South Africa?

The immigration act of South Africa stipulates that anyone who knowingly employs foreign applicants without work permits will be in direct violation of the act and will be fined or might face imprisonment which will not exceed 12 months for their first offence.

It is easy to get caught by the Department of Home Affairs, one of the company’s employees might report this and DHA will visit your workplace unannounced. This is why you should always follow the correct procedure even though it might take longer but it’s the best way to stay on the right side of the law and prevent any legal proceedings.

Therefore it is important to ensure that all foreign employees’ visas or permits are valid and that they are taking responsibility to renew their visas before it expires. When applying for a work visa, the company drafts an undertaking letter to DHA ensuring that at all times they’ll ensure that the applicant’s visa remains valid.

The Department of Home Affairs has over the past few years cracked down on employers who are illegally employing foreigners which is has stemmed from audits and investigations into suspected companies. Do not at any moment expect that DHA is ignoring the fact there are many illegal workers in SA and they are slowly but surely approaching it on a case by case basis.

www.samigration.com

Work Visa

SA Migration | 10 March 2023

Want to know more about work visas:

1. What you need to know about work permit South Africa.

2. Apply for work permit South Africa for Zimbabweans

3. Apply for a work permit South Africa for Malawians

4. Who is defined as an illegal worker?

5. A person who has not entered South Africa through one of its official ports and presenting the necessary documents.

6. A person who is not undertaking the same job as endorsed in the visa.

7. A person who is not using a work permit in SA.

Can you employ someone without a work permit?

No, you are not allowed to employ someone without a South African work visa as this is illegal and the company or person can be fined or face imprisonment. The responsibility falls on the employer when they decide to employ a foreigner and the law does not penalize the foreigner for accepting or working with no visa.

It’s not an offence when you do the following:

• Accepting a job offer with a visa

• Signing a contract without a visa

Employers must remember that a foreigner who is employed without a work visa or whose work visa expires during his or her employment is still regarded as an employee of the company. The labour relations act stipulates that an employer may not dismiss a foreigner due to an expired visa or who is employed without a work permit.

An accompanying spouse may not work in South Africa, therefore there is no accompanying spouse work permit in South Africa. Accompanying spouses must apply for their own work visas.

Therefore it’s best to ask the foreign applicant whether he or she is in the process of applying for a visa or the company can offer to assist the person in obtaining a work visa, provided they qualify for a South African work visa. This way the employer is not held responsible and caught off guard when the Department of Home Affairs investigates the company or the foreigner. You should not assist a foreigner if they are illegal.

Employers need to verify the immigrant’s status when they produce a work visa and our guide: “How to spot a fake work permit in South Africa“, this guide will give you all the tips you need to look for when looking at a visa.

If the applicant does not qualify for a visa, the next option would be for them to apply for an asylum or refugee visa but this can take a while before they the visa for this

Home Affairs staff on a go slow service delivery suffers

The Daily Voice | 07 March 2023

Western Cape Nehawu secretary Baxolise Mali told the Daily Voice they’ve been at loggerheads with the government since last year after the state offered a measly 3% increase.

An upset Rowena von Ruben from Delft said she had been queuing outside Home Affairs since 3am.

The couple had all the necessary documents in hand but were denied entry, much to the dismay of the crowd, who cheered them up.

A delivery truck that came to deliver chairs at Home Affairs was blocked by upset mense, saying if they can’t enter, then no one else is going to enter.

The provincial Department of Home Affairs did not reply to queries.

www.samigration.com

Court grants asylum transit visas to Afghan refugees

06 March 2023 – Times Live

Department of home affairs says it will abide by the Pretoria high court’s ruling after initially refusing the people entry

Home affairs minister Aaron Motsoaledi. File photo.
Image: Trevor Samson

The department of home affairs said it will abide by a Pretoria high court order granting 22 Afghans fleeing the Taliban access to SA on asylum transit visas.

“The DHA [department of home affairs] will abide by the ruling of the court and take all necessary steps to give effect to the ruling,” said spokesperson Siya Qoza. “The decision to abide shows the DHA respects the rule of law.

“However, this should not be interpreted as opening floodgates for spurious asylum claims. “The DHA will not hesitate to fight the cases in court, as it has done in this instance.”

The department initially refused the Afghans entry despite a court order that the government should grant them permission to seek asylum. It was issued after Lifeline Foundation, a US-based NGO, argued the people might be victimised by the Taliban.

The department, which said it was notified of the pending court proceedings after the fact, challenged the order. 

Qoza said the department received a letter from attorneys representing the people on February 15, demanding they be issued transit visas.

“While DHA was preparing a response to the letter, on February 16, a group of 22 Afghanistan nationals in the company of American citizens arrived at the Beitbridge port of entry and requested to be issued with asylum transit visas in order for them to enter the Republic of South Africa to apply for asylum,” he said.

“The immigration officer refused to do so as they were all issued with multiple-entry tourist visas by the government of the Republic of Zimbabwe on January 20,” he said.

The lawyers representing the Afghans approached the court on an urgent basis (in the absence of the DHA), which granted the interim order allowing them to be issued with asylum transit visas, Qoza said.

“The court, however, allowed the DHA to anticipate the interim order within 24 hours. The DHA did exactly that and the court refused to confirm the interim order to allow the DHA to file answering papers. The matter was heard by the court on February 20 2023. Judgment was reserved,” Qoza added.

Home affairs minister Aaron Motsoaledi said his office did not think this was a case of asylum seekers or refugees, but a move by the US NGO to undermine SA’s sovereignty.

www.samigration.com

New ‘travel pass’ rolling out to all airports in South Africa

News 24 |06 March 2023

The South African Revenue Service (SARS) has announced that the new online traveller declaration system that grants a travel pass via email is planned to be implemented at all airports in the country.

The new system was successfully trialled from 29 November 2022 as phase 1 of the project at King Shaka International Airport, SARS said.

The next phase of the implementation is to roll out the system at all airports, starting with:

• Cape Town International Airport on 28 February 2023
• O.R. Tambo International Airport on 23 March 2023
• Other airports in the second and third quarters of 2023
• Land ports, namely Beit Bridge and Skilpadshek, after that.

The Cape Town Seaport is also in line to implement the system during the last quarter of 2023, SARS added.

Although it will have a widespread implementation, the new system will continue on a voluntary basis during the pilot phase until further notice, SARS said.

The pilot project results will be applied as SARS rolls out the system in line with customs legislation.

The new system introduced by SARS is a web-based application that allows travellers to pre-declare goods they have acquired and pay the applicable taxes upon entering or leaving the country.

It requires travellers to declare various goods, including products purchased or acquired abroad, repaired or remodelled goods, and anything that is prohibited or controlled by law.

“Travellers who are travelling with children or infants will also need to complete a declaration on their behalf.”

Beyers Theron, the director of customs and border control at SARS, said when the first pilot was launched, travel cards and declaration documents were becoming increasingly prevalent worldwide.

Currently, all visitors to South Africa are required to fill out a paper-based Traveler Card (TC-01) at the airport if they have any items to declare, said the director.

SARS aims to change this by introducing an online system to streamline the process and make it more efficient.

This shift to an online declaration process is expected to provide a smoother experience for travellers at any entry or exit point in South Africa.

Under the revenue service’s aim to further modernise and tax a firm stance against tax non-compliance, the new declaration system forms part of its new SMART border project.

www.saamigration.com