The law is clear that an employer may not employ a foreigner without a valid work visa. Section 38 of the Immigration Act 13 of 2002, as amended (“the Immigration Act”) precludes the employment of foreigners who do not have a valid work permit, whilst section 49(3) makes it an offence to knowingly employ a foreigner in violation of the Immigration Act.

Not withstanding these statutory prescriptions, certain unscrupulous employers still find occasion to flout the Immigration Act and employ foreigners in the absence of a valid work permit, often for reasons of convenience. In other instances, the employer is relatively blameless, such as where the work permit of an employee who has been in its employ for a period of time expires, leaving the employer in a quandary. The law has developed to include protections for such employees. The Labour Court has found, in the well-known case of Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC), that foreign employees enjoy the same protections afforded by the Labour Relations Act 66 of 1995, as amended (“the LRA”), regardless of their legal status.

In other words, an employer is not entitled to simply jettison its obligation to ensure that both substantive and procedural fairness is observed when dismissing an employee who does not have a work permit. Employers are however often unsure as to how the issue should be addressed when they discover that they employ a foreigner who is employed in contravention of the Immigration Act.

Section 188 of the LRA places obligations on the employer to ensure that the dismissal is for a fair reason (substantive fairness) and is in accordance with a fair procedure (procedural fairness). The classification of the ground for the dismissal and the consequent procedure followed by the employer has a direct bearing on the fairness of the termination. An employer who applies the incorrect ground and consequently follows the incorrect procedure falls foul of the LRA resulting in an unfair dismissal and the risk of having to reinstate the employee and/or pay compensation (although in a case involving a foreign employee without a work permit reinstatement would most likely not be an appropriate remedy). In addition, a dismissal for operational requirements necessitates the payment of a severance package which has adverse financial implications for an employer. It is therefore important for the employer to ensure that it correctly contextualises the reason for the termination and that it follows the correct process.

There has been uncertainty about the appropriate ground for the termination of employment in circumstances where a foreigner’s work permit expires whilst in the employ of the employer. In particular, a debate has arisen about whether the dismissal is for reasons of incapacity or for operational requirements.
To determine the cause of the termination it is important to consider the factual cause of the dismissal. As a general rule, dismissals for operational requirements are related to the economic, structural, technological or similar needs of the business. These factors are external to the employee. Incapacity, on the other hand, is understood as the inability of the employee to perform either as a result of a lack of the required skill, knowledge, ability to do the job or as a result of illness or injury. These are factors which are internal to the employee. This distinction has however evolved in recent years and the distinction is not always clear to maintain.

In SACWU & Others, v Afrox Ltd (1999) 20 ILJ 718 (LAC) the Labour Appeal Court (“LAC”) relied on the concept of causation in determining the true reason for the dismissal. This case was concerned with establishing whether the employees had been dismissed for striking or for the operational requirements of the employer.

The principles applied by the LAC are helpful:
[32] The enquiry into the reason for the dismissal is an objective one … The issue (the reason for the dismissal) is essentially one of causation…. The first step is to determine the factual causation: was participation [in] … the protected strike a sine qua non for the dismissal… put another way, would the dismissal have occurred if there was no … strike. If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair, the next issue is one of legal causation …. Whether such participation or conduct was the “main”, or “dominant” or “proximate” or “most likely” cause of the dismissal.

In Samancor Tubatse Ferrochrome v MEIBC & Others [2010] 8 BLLR 824 (LAC), an employee who was unable to perform due to being incarcerated was dismissed for “operational incapacity”. The LAC held that the concept of incapacity is broader than ill-health or poor performance and would include external legal circumstances which are beyond the employee’s control and which prevent the employee from being able to perform.

This reasoning was followed in Armaments Corporation of South Africa (SOC) Ltd v CCMA & Others (2016) 37 ILJ (LC), where the Labour Court confirmed that dismissals for incapacity can take other forms, such as imprisonment and military call-ups, which incapacitate the employee from performing his obligations in terms of his contract of employment.

This broader understanding of the concept of incapacity was again confirmed in First National Bank — A Division of First Rand Bank Ltd v Commission for Conciliation, Mediation & Arbitration & others (2017) 38 ILJ 2545 (LC). This case concerned the dismissal of an employee who failed, on numerous occasions, to obtain qualifications required in terms of the Financial Advisory and Intermediary Services Act 37 of 2002 (“FAIS”). It was a term of the employee’s contract of employment that he should be qualified in terms of the statutory requirements of FAIS. The employer convened an incapacity process and dismissed the employee on the grounds of incapacity. The employee challenged the fairness of his dismissal by arguing that the employer had selected the wrong ground for dismissal and to the extent that the employer wished to dismiss him, it should have done so for operational requirements.

The Labour Court in FNB confirmed that the LRA recognises forms of incapacity broader than poor performance or ill-health and injury. After considering both the Samancor and Armscor judgments, the Labour Court confirmed that where an act of Parliament prohibits a certain type of employment, the continued employment is not possible on the grounds of incapacity, and not operational requirements.

The operation of the Immigration Act is no different. The Immigration Act precludes the employment of a foreigner who does not have a valid work permit. If an employee’s work permit expires, the employer is unable to satisfy the legal obligations demanded of it by the Immigration Act. In these circumstances, it may be appropriate for the employer to terminate the employment relationship by relying on the ground of legal incapacity.

The Department of Home Affairs (DHA) does not allow for preferential treatment when passing through immigration services, with one notable exception.
While the DHA has dismissed the notion of paying extra in exchange for faster services, Discovery Bank currently allows select customers to join a Fast Track lane when passing through Immigration at O.R. Tambo International Airport in Gauteng.

This is despite the fact that Discovery Bank has no agreement with the Border Management Agency (BMA) within Home Affairs.
Fast-track security clearance is nothing new for airports, as terminals around the world offer programmes that allow people with products or services to quickly pass through security for an extra fee, provided they are affiliated with a company that has an agreement with the airport.
Airports Company South Africa (ACSA), which manages the vast majority of the nation’s landing strips, has been offering Fast Track security clearance for years.

It was initially only available to first and business class customers, as well as those travellers who were part of select loyalty programmes, according to MyBroadband.

In 2020, ACSA entered a commercial marketing deal with Discovery Bank, which included a benefit for the bank’s clientele that would allow them to use “Priority Fast Track” lanes.

This benefit is currently available to Discovery Bank Black and Purple account holders passing through the domestic terminals of O.R. Tambo and Cape Town International Airport.

This service is nothing out of the ordinary compared to similar benefit programmes overseas.
However, questions have been raised over the Discovery Bank Fast Track lane found at Arrivals in the international terminal at O.R. Tambo.
Passport control is handled by the Border Management Authority (BMA), and there are currently no other border control points in South Africa where travellers can get preferential queuing based on a product or service they use, or paying an additional fee.

Setting a bad example
Journalist Andrew Thompson recently spoke in an interview with Cape Talk where he questioned whether it was fair that a company could offer such preferential access to a national asset.

He argued that it would be like visiting a Home Affairs or South African Revenue Services branch and skipping to the front of the queue because the individual is a member of a particular bank.

He also expressed a general concern about how many airports allow persons to pay for faster security clearance.
Thompson’s reasoning is that these services only exist because of the long queues in regular security lanes.
This incentivizes poor service delivery, as individuals feel more pressured to fork out for “special treatment” the worse the queues get.
The DHA previously stated that it was developing its own “premium service” but that this would only be for home deliveries of documents and would not allow users to fast track their applications.

This was in response to backlash the department received from the public when it announced it would offer a premium service, as citizens complained that charging for preferential treatment was unacceptable given the notoriously slow service the DHA is known for.
Discovery told MyBroadband that other parties have access to the Fast Track channel, but acknowledged passport control fell under the BMA and the company had no relationship with the BMA.

Jean Mboulè, a Cameroonian won a landmark legal case against France after his Schengen visa application was rejected on questionable grounds.
Mboulè's experience has brought renewed attention to long-standing frustrations among African travellers over what many view as discriminatory and opaque visa policies enforced by European countries.

Visa rejection despite stronger credentials
Mboulè, who was born in France, had applied for the visa alongside his wife, a South African citizen, according to a report by CNN.
Though she was unemployed at the time and had no personal income, she received a visa based on Mboulè’s financial documents. His application, however, was rejected.

“The embassy said they refused my application because my documents were fake, and they weren’t sure I would come back to South Africa, where I am a permanent resident," Mboulè said.

The 39-year-old regional executive took legal action in French courts and won, forcing the French embassy in Johannesburg to grant his visa and pay him a fine of 1,200 euros.

After he got the visa, he chose to go to Mauritius instead as he didn’t want to spend his money in France.
But even after he got the visa, he chose to go to Mauritius instead as he didn’t want to spend his money in France.

Millions lost to Schengen Visa rejections.

The Cameroonian’s case is unique as many Africans denied Schengen visas rarely appeal or contest the decisions in court. Instead, applicants often reapply, incurring additional costs in the process.

“The financial cost of rejected visas is just staggering; you can think of them as ‘reverse remittances,’ money flowing from poor to rich countries, which we never hear about,” the LAGO Collective’s Foresti says.
Schengen visa fees increased from 80 to 90 euros in July 2024, making it even more expensive for the world’s poorest applicants.

As South Africans eye international travel, particularly to the United States, apprehensions about visa-related issues are mounting.
With diplomatic relations between the US and South Africa currently under strain, even valid visa holders are questioning their welcome in America.
Recent statistics from the US International Trade Administration further underline this anxiety, revealing a nearly 10% decline in international air visitors to the States in March alone, compared to last year.

This cultural and economic shift has put traveller confidence in a precarious position, as having a visa does not guarantee entry.
Lynette Machiri, customer experience leader at Flight Centre South Africa, emphasises that “Customs and Border Protection officers make the final call at the airport.”

Machiri says this assertion rings true not only for the US but for every global destination. She notes that the onus is on travellers to ensure that they meticulously prepare their documentation and understand travel requirements.
Here are essential dos and don'ts to navigate visa travel, according to Machiri.

Dos of visa travel
• Double-check personal information and ensure consistency across all documents.
• Select the right visa type and tailor the visa application to your purpose of travel to avoid complications.
• Prepare detailed documentation and have a clear record of your travel plans, including confirmed accommodation and return tickets when required.
• Provide proof of funds while being ready to show evidence of finances to support your stay.
• Allocate time for visa processing, including preparing ahead, taking into account varying processing times.
• Disclose previous visa refusals as transparency in your visa application may prevent future complications.
• Consider flexible travel fares and book flexible or unrestricted flights, accommodating potential visa delays.
• Invest in comprehensive travel insurance and make sure the policy covers various contingencies; read the terms carefully.
• Seek professional advice so a knowledgeable travel advisor can streamline the process and provide targeted support.
• Be prepared to explain your travel purpose, as providing clear and consistent communication with border officials is crucial.
• Keep hard and digital copies of documents and ensure easy access to important papers during travel.

Don'ts of visa travel
• Don’t apply for the wrong visa type, and avoid tourist visas if your visit involves work, study, or other business-related activities.
• Don’t assume a transit visa is unnecessary. Check if a visa is required, even for airport layovers.
• Avoid travelling with near-expiring documents. Ensure your passport has at least six months’ validity beyond your departure date.
• Do not provide vague answers. Be specific and consistent in your explanations to border control.
• Don’t rush the visa application process. Patience can prevent errors that lead to denial.
• Don’t believe a visa guarantees entry. It only authorises you to apply for entry; the final decision rests with immigration officials.
• Don’t neglect the fine print of insurance. Understand what your travel insurance covers and excludes.
• Avoid last-minute visa appointments and plan accordingly to secure timely application submissions.
• Don’t travel without hard copies. Always have printed versions of relevant documents readily accessible.

Lastly, Machiri notes that being informed and prepared are essential steps to ensuring a smooth passage through immigration.
"The majority of international travellers navigate the process without incident, with the right precautions and diligent preparation playing pivotal roles," she says.

The US has suspended student visa appointments globally, including for Indian applicants, as it intensifies social media checks. This has left many Indian students unsure about their future studies
The Trump administration has ordered US embassies worldwide, including in India, to stop scheduling appointments for student visas while it moves to ramp up social media checks. The decision could disrupt the plans of thousands of students hoping to begin courses in the US this autumn and may damage the country’s reputation as a destination for study and research.

Who’s most affected?

“Quite simply, the students most affected will be those who have not secured an appointment and those who have already scheduled one,” Ajay Sharma, an immigration expert told Business Standard. “The rejection rate could rise, particularly for applicants whose posts have been liked, shared, or forwarded—especially if they are considered controversial. These could include politically charged posts or ones seen as antisemitic.”


Sharma added, “For those with appointments in the autumn, chances may be slim if they are flagged for such activity. In terms of safeguarding interests, remember that digital footprints are hard to erase, so deleting posts is pointless. It’s better to be prepared to explain why you made those posts if the visa officer questions them. Otherwise, your application could be rejected.”

Varun Singh, managing director at XIPHIAS Immigration, said, “The move targets a narrow segment of applicants, often due to security, fraud, or policy-related concerns. It doesn’t apply to all students across the board. Generally, students linked—knowingly or unknowingly—to flagged institutions, suspicious financial documents, or perceived visa misuse may face temporary holds or outright rejections. That said, most genuine applicants from recognised universities and transparent profiles are not affected.”

Singh added, “Indian students applying to lesser-known or blacklisted institutions, especially those with high visa fraud cases in the past, are more vulnerable. Also, students who present incomplete documentation, inconsistencies in their academic or financial history, or show weak post-study plans—especially if they cannot convincingly answer why they wish to study in the US—might face scrutiny. STEM applicants generally have a smoother route, but even they can face delays if flagged by security clearance protocols.”

Impact on autumn intake

“For those planning to join in the August–September 2025 intake, this situation can create uncertainty and anxiety, especially for students still awaiting I-20 forms or those with pending visa appointments,” Singh said. “A delayed visa could mean deferring the semester, missing out on scholarships, or bearing higher rebooking costs for flights and accommodations. However, most reputed institutions are aware of these patterns and usually allow flexibility through deferred admissions or late arrivals.”

What does the order state?

An official memo says embassies and consulates will now be increasing their social media vetting for student and foreign exchange visas. “We use all available information in our visa screening and vetting,” the State Department said. It has not said what kind of social media content might be seen as unacceptable, but applicants must now list social media information dating back to 2019 on their forms.

US Secretary of State Marco Rubio wrote, “Effective immediately, in preparation for an expansion of required social media screening and vetting, consular sections should not add any additional student or exchange visitor (F, M and J) visa appointment capacity until further guidance is issued.”

This order comes as President Donald Trump’s administration takes a tougher line on some of the country’s leading universities, accusing them of failing to deal with antisemitism during pro-Palestinian campus protests.

What can students do?

Abhisha Parikh, a US-based immigration lawyer, posted this advice on social media:

* Check your embassy’s website regularly
* Stay in contact with your school’s international student office
* Be careful with what you post online
* Save communications and documents in case of delays

Piyush Kumar, regional director for South Asia, Canada and Latin America at IDP Education, said, “Our advice to the students and their families is to understand that this is a ‘temporary pause’ while the US consular sections incorporate and formalise the new process of social media vetting of applicants’ profiles. It is important to note that the temporary pause has been introduced for fresh applications only. Current appointments remain unaffected, and students will be expected to appear for their visa interviews as planned.”

Kumar added, “Students should remain calm, and given the new profile vetting parameter, mindful of their social media activity. It is important for them to understand the power of social media and ensure they uphold the status of being model, responsible global citizens. Students should stay updated through verified sources such as the US Embassy website or their social media handles for the most updated and unbiased information.”

Parikh said, “Foreign-born professionals make up 19% of all STEM workers and 43% of PhD-level scientists and engineers. They’re crucial in tech, engineering, and biomedical research.”

Practical steps to protect plans

Singh shared these suggestions:

* Apply early, as soon as you get your I-20, to give yourself more time to reapply if needed
* Double-check your documents, making sure your academic transcripts, bank statements, and intent letters are clear and verifiable
* Avoid agents promising ‘guaranteed’ visas, which often involve practices that could flag your file
* Stay in touch with your university, as many US universities help students with visa delays
* Consider applying to countries like Canada, the UK, or Australia as a backup

“For those who have never posted anything questionable, the best safeguard is to avoid posting content that could be seen as politically sensitive, critical of the US, or antisemitic,” Sharma said. “The simple advice is to steer clear of politics. Your goal is to study in the US—focus on that and stay away from political controversies for now. You’ll have the rest of your life to engage with those issues if you wish.”