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.
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