Laws about foreign national employees have gotten stricter
May 28, 2014
- PUBLISHED ON 28 MAY 2014
- JENNY REID
In South Africa, foreign nationals working for your company – who don’t confirm their employment with the department of home affairs or whose visas have expired – could put you and your company at serious risk. This means that your HR department needs to get on top of this – fast. Here’s how to make sure that you’re not at risk.
If a South African company employees a foreign national, the company and employee have to confirm employment in terms of the Immigration Act. This has to be done within 90 days of arrival and then annually, otherwise the foreign national will face losing his or her work permit and compromising a chance at permanent residence. Recent amendments to the draft immigration regulations mean that if a foreign national overstay their welcome, on a valid visa, they could be banned from the country for up to 10 years.
There’s a heavy burden of proof on foreign nationals coming to work in SA
Foreign nationals coming in to South Africa on a general work permit must:
If a foreign national comes in on a specials skills visa or quota work permit, give the director general of home affairs the following information about the candidate:
As part of the compliance process, provide a letter confirming continued employment, as well as a copy of the contract. If there is a change of employment, a release letter is needed from the previous employer as is a copy of the prior contract.
Tread carefully around the Immigration Act and the department of home affairs
There are serious problems in the specifications of the Immigration Act and dealing with the department of home affairs:
A simple confirmation of employment has become a minefield of red tape and delays, which will most likely give your HR department endless headaches. The result of non-compliance can see the permit voided, the employee excluded from South Africa and cost the employer a great loss in terms of investment and talent.
Many employers don’t tell the department that they employ foreigners
The risk of being found out can outweigh the frustration of trying to collate, submit and verify the relevant documents. In many cases, the changes to the act and its regulations are stringent and, unfortunately, don’t have proper government administrative support or clarification. Paying a bribe or hiring through illegal means could end up damaging or even closing down a company in the long term.
In terms of specialised skills, a quota work permit is the only way for companies to issue contracts to suitable candidates. As long as the permit falls within the numbers outlined in the Government Gazette, the post doesn’t have to be advertised.
A foreign national doesn’t need an offer of employment to enter the country
So before issuing a contract to a foreign national, verify their documents. It’s essential to:
Every CV has to be authentic and double checked so that SAQA approves it.
The changes to the draft immigration regulations, as of April 2014, mean that staying in South Africa on an expired visa will result in foreign nationals being declared undesirable for two years. Within 60 days, a three-year ban will be issued and over this period, a decade-long exclusion will be issued.
Unfortunately, the department of home affairs can’t always guarantee that visas will be issued on time considering the backlog and long waiting list. There is the real danger of a permit being cancelled for non-compliance. Even though a new practice – for applying to have an existing permit extended – this could just create more red tape and confusion.