‘We don’t have to wait for the bill to be passed before those employing illegal foreigners start stressing, but the scary part is in the fines going anywhere from R100 000 to R1m or even more’ – Aadil Wadee, immigration lawyer, Xpatweb.
You can also listen to this podcast on iono.fm here.
JIMMY MOYAHA: The South African Department of Employment and Labour has put forward the Employment Services Amendment Bill that aims to look at how employers are held accountable for the undocumented foreign nationals that they employ.
Currently, Section 38 of the Immigration Act speaks to some penalties that can be imposed on employers that employ undocumented foreign nationals, and the latest proposal is that these penalties be increased in severity.
We’re going to look at this in more detail with senior immigration consultant at Xpatweb, Aadil Wadee. He joins us on the line to see what we make of this. Aadil, good evening, thanks so much for taking the time.
Let’s start with an overview of the current amendment bill that is sitting before parliament for review. Give us an understanding of where we stand with that particular process, what penalties are currently in place, and what is being proposed.
AADIL WADEE: Yes, of course, Jimmy. Thank you so much for having me, and good evening to your listeners as well.
I think the starting point at the moment for a lot of people out there – because there is a lot of talk surrounding this bill at the moment – is we have to remember that, as it currently stands, it is a bill.
It’s currently with the portfolio committee before it gets passed into law, so it’s not finalised yet. But there are a lot of changes that seek to make [conditions for] the employing of foreign nationals in South Africa more stringent.
The part I want to touch on in that – specifically with regard to practising immigration – is the Department of Home Affairs itself.
As we’ve currently seen, the landscape is seeking to make it a little easier to actually mobilise talent into South Africa; so it’s almost a little contradictory on that front itself.
But with the review of this bill and what it seeks to impose, I think the key point for a lot of individuals out there is the new fines which need to be introduced, whereby they’ve set fixed amounts.
Currently, this is governed under Section 38 of the Immigration Act, whereby imposition of either fines or jail time is part of the act itself, but the fines themselves have not been defined in terms of the amounts.
Read: Arrests, fines and imprisonment a reality for SA employers hiring illegal foreign nationals
So the scary part for a lot of employers out there at the moment is in regard to the fines going anywhere from R100 000 to R1 million or, in certain circumstances, even more than that.
I think that’s the scary part at the moment.
JIMMY MOYAHA: Aadil, you touched on the fact that the Department of Home Affairs has taken a slightly different approach, and I suppose the main differentiator here is we’re looking at undocumented foreign nationals versus those who are legitimately in South Africa.
I want to take a look at the penalties in more detail and get a sense of perhaps some of the unintended consequences that could come up for businesses legitimately seeking the expertise of legitimate foreign service providers and foreign nationals.
How could we possibly find ourselves in a tough spot, given that some of our sectors and some of our industries do currently face a skills shortage? I suppose that’s what we’re trying to drive with the Department of Home Affairs side of things.
AADIL WADEE: Of course. When it comes to undocumented foreign nationals, illegal foreign nationals in South Africa, the Immigration Act already basically imposes [penalties] on employers – they are deemed to know they are employing undocumented foreign nationals and that’s when the fines or imprisonment can be imposed on them because it’s deemed that they already know.
So a lot of emphasis is placed on employers themselves to make sure that any individual who is employed by the company has been vetted properly, has the correct documentation.
Because, if they are deemed to be an illegal foreigner, obviously those fines and/or imprisonment can be imposed.
In terms of the skills shortage specifically, the department is obviously very aware of that. With regard to a lot of the long-term visa options already available for South Africa, those cater to various different needs, depending on the individuals themselves.
There are also options out there in terms of visa options whereby, if they are for low-lying employees or low-level employees, there is something known as a corporate visa, et cetera. That’s often the case in terms of farm workers, for example.
They’ve tried to cater for everyone, whether skills in a multinational company, or maybe a farmer who requires certain expertise for the type of fruit he’s growing.
At the end of the day they have tried to cater for every one of those individuals. It’s now up to the employer to make sure that, yes, sometimes I do understand that it takes a little bit of time to try and get those visas out. That’s where a lot of the problem comes in – due to the time aspect.
But the problem is those mechanisms do exist at the end of the day.
So relying on ‘Oh, we just can’t get them in because there’s a skills shortage, and we had to bring them in as soon as possible’ will not suffice as an applicable excuse when the Department of Labour, or the Department of Home Affairs, or SAPS [South African Police Service] rocks up at your business and asks ‘Why do you have an illegal foreigner?’.
The fact of the matter is you were supposed to follow the route which is laid out in the Immigration Act itself.
JIMMY MOYAHA: Aadil, before I let you go, I want to take a closer look at that route and the practical steps that companies, prospective employers, can explore when looking to have legally compliant foreign professionals come and work in South Africa. That’s also quite important if we are to find that some businesses require these services. As you said, there is a route to go by; there are practical steps to follow here.
Where should we start, especially given that we don’t know if this bill is going to move ahead or not as yet? But businesses need to prepare.
AADIL WADEE: Of course. I fully agree businesses do need to prepare because, again, I just want to touch on the fact that as much as this bill isn’t passed, the fact that the Immigration Act already has certain fines and imprisonment built in the system means that we don’t have to wait for the bill to be passed before employers start stressing.
I feel they should have started stressing almost yesterday already, because with the way the country’s currently going and the number of inspections, et cetera, going on, it is crucial for employers to make sure that they are doing things the correct way.
The starting point for most employers out there who employ foreign nationals or have foreign nationals currently employed within their businesses, is to first vet the documents that those nationals currently have. It’s super-important to do so.
Something I want to touch on is it’s not just [enough] that an employee comes to you and produces a visa or permanent residence, et cetera, document. There is a deeper look into that which has to be done. There are obviously a lot of fraudulent documents out there which have to be looked at.
And secondly, the visa itself is always specific to the scenario of that individual.
The conditions on a visa, for example, differ from case to case. So it’s always important to first do that.
And there’s one of two ways as a starting basis. First, there is formal verification itself, which is done through the Department of Home Affairs, whereby they will verify the authenticity of that visa.
Or sometimes you can do something as an informal verification through third parties, whereby there are professionals who look at the documents of your employees to make sure that they are legitimate, or provide you at least with a basis to say that on face value this is what it appears to be.
That is a very good starting point for employers out there, because they have to vet the people they currently employ.
For future planning, it’s always important to identify the type of situation you’re currently in – and why the employee needs to come to South Africa. And then on that basis we need to qualify it against the Immigration Act to see which category itself actually allows that employee to come in on that specific basis.
So future planning is a little easier, because we now know we have to make sure that we deal with each scenario on a specific basis.
But for current employees in your employ, it is extremely important right now to just make sure.
Just because they have a visa doesn’t mean they’re here legally. It means you have to make sure that that visa itself is correct for the position they’re in within your company.
JIMMY MOYAHA: Some potentially significant changes are on the cards for employers looking to hire foreign nationals in South Africa.
Of course, this conversation is an ongoing one; it has been ongoing for the longest time. We’ll keep an eye on how these developments may financially impact employers going forward.
We’ll leave the conversation on that note. Senior immigration consultant at Xpatweb Aadil Wadee joined us to take a look at the latest amendment bill being put forward for consideration around penalties for those who employ undocumented foreign nationals.
Source: https://www.moneyweb.co.za/moneyweb-radio/safm-market-update/new-penalties-put-employers-on-notice/