As we approach June 2023, it is important to revise some important information regarding Foreign Nationals and their employment status.
An overview of legislation linked to the employment of foreign nationals:
31 May 2022 – The Immigration Act 13 of 2002 (as amended)
Section 38 of the Immigration Act 13 of 2002 (as amended) provides that no person may employ an illegal/undocumented foreign national or a foreign national whose status does not authorise him/her to be employed. This means that the employee should be in possession of a valid ID and/or passport and the necessary work permit. The Act places a duty on the employer to act in good faith, ensuring that no undocumented foreign national is employed and to ascertain the status or citizenship of employees, verifying the validity and authenticity of documentation supplied. It should be noted that many work permits have conditions attached, which can mean that any change in employment, even job title, duties, or responsibilities, could potentially render that permit invalid.
September 2017 – Introduction of the Zimbabwean Exemption Permit (ZEP)
Introduced in September 2017, the Zimbabwean Exemption Permit (ZEP), sought to regularize the many Zimbabweans who have come into South Africa following political and economic turmoil in their country. The ZEP was intended to provide longer-term clarity on temporary residency status, especially for those who had been on Zimbabwean Special Permits (ZSP) previously. The ZEP was always intended to be for a fixed period, four (4) years effective 1 January 2018 and expiring 31 December 2021. Conditions attached to ZEP were that they were not renewable and that the time spent in the country under the ZEP would not entitle holders to apply for permanent residence, irrespective of the duration of their stay in South Africa, Further, a ZEP holder may not change the conditions of their permits whilst in South Africa and would therefore have to return to Zimbabwe and re-apply, should they wish to change the nature of their permit.
7 January 2022 – Minister’s Immigration Directive No 01 of 2021 – Extension of ZEP for a period of 12 months
Cabinet granted a grace period of twelve (12) months, until 31 December 2022, to all ZEP holders to have sufficient time and opportunity for them to legalize their status in South Africa in terms of the Immigration Act. However, failure to secure another valid permit entitling the individual to live and work in South Africa, means that all ZEP holders need to leave the country permanently by 31 December 2022. The grace period, including the request for ZEP holders to be treated fairly, was communicated in the Directive issued by the Department of Home Affairs in January 2022.
2 September 2022 – Press Statement: Zimbabwean Nationals Granted Exemption in terms of Section 31(2)(b) of the Immigration Act
The Minister granted a further grace period of six (6) months, until 30 June 2023 to all ZEP holders to have sufficient time and opportunity for them to legalise their status in South Africa.
20 September 2022 – Temporary measures in respect of foreign nationals in light of a backlog being experienced in processing outcomes on waiver applications and visa applications until 31 March 2023
Applicants whose waiver application outcomes are still pending are hereby granted a blanket temporary extension until 31 March 2023 due to backlog being experienced.
29 March 2023 – Temporary measures in respect of foreign nationals in light of a backlog experienced in processing outcomes on waiver applications and visa applications
Applicants whose waiver application outcomes are still pending are hereby granted a blanket temporary extension until 31 December 2023 due to backlog being experienced.
This only applies to applicants who have submitted an application via VFS before or on 31 March 2023.
An overview of where we currently are:
No person may employ an illegal/undocumented foreign national or a foreign national whose status does not authorise him/her to be employed.
Zimbabwean Nationals have been granted exemption until 30 June 2023 to legalise their status.
Applicants who have submitted an application via VFS before or on 31 March 2023 and whose waiver applicant outcomes are still pending are granted a blanket temporary extension until 31 December 2023 due to backlog being experienced.
What is my duty as an employer?
The Act places a duty on the employer to act in good faith, ensuring that no undocumented foreign national is employed and to ascertain the status or citizenship of employees, verifying the validity and authenticity of documentation supplied. It should be noted that many work permits have conditions attached, which can mean that any change in employment, even job title, duties, or responsibilities, could potentially render that permit invalid.
Why should I care?
Section 49(3) of the Immigration Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence. The fines noted in the Immigration Act and range from R7 000 to a possible R50 000 per person, depending on the contravention.
Can I not just dismiss an employee who is in violation of the Immigration Act?
South Africa’s Constitution provides that everyone has the right to fair labour practice, and this right is not guaranteed for citizens only. The Labour Relations Act (LRA), and other employment legislation, apply regardless of the legal status of the employee. It is therefore important to note that foreign nationals, including those who do not have valid work visas, are afforded legal protection from unfair dismissal, and enjoy the same rights, benefits, and recourse, as their fellow South African employees.
Further, it is important to note that South African legislation does not declare a contract between the employer and an employee without a valid permit void, but rather prohibits the act of employing a foreign national without valid documentation. Thereby the liability falls on the employer and does not penalize the foreign national for accepting work without valid authorisation.
Should the foreign national’s work permit expire whilst in employment (or if no valid documents existed at the onset of employment) the individual is still viewed – and protected – as an employee under the LRA. Whilst they would have the right of recourse to the CCMA or Bargaining Council, in the event of unfair dismissal, reinstatement would not be considered as this would be in contravention of the Immigration Act.
So, what should I do?
Ascertain the status or citizenship of employees, verifying the validity and authenticity of documentation supplied.
If you have discovered that any of your staff are without the required documentation or there is nearing expiry, then reach out to the EOHCB to assist you with the process of terminating an employment contract with a foreign national due to their illegal status.
Quick Check: Definitions
A “‘foreign national’ means an individual who—
(a) is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act; or
(b) has not been granted recognition as a refugee in terms of the Refugees Act”
This means anyone who is not in possession of a green ID book, or the red Refugees ID document, is considered a Foreign National and would be subject to the conditions imposed by the Immigration Act, 13 of 2002, as well as the changes proposed by the National Labour Migration Policy (NLMP).
A Refugee is a person who has been granted asylum status and protection in terms of section 24 of Refugee Act No 130 of 1998.
An individual who has been given formal recognition as a refugee, section 24 permit (maroon ID document), enjoys full legal protection and all rights set out in Chapter 2 of the Constitution. Rights to seek employment are included.
An Asylum Seeker is a person who has fled his or her country of origin and is seeking recognition and protection as a refugee in the Republic of South Africa, and whose application is still under consideration. In case of a negative decision on his application, s/he must leave the country voluntarily or will be deported.
Under the amended Refugees Act, asylum seekers DO NOT automatically have permission to work in South Africa. If they wish to work whilst under an asylum seeker (Section 22) permit, an application must be made to have their asylum seeker document “endorsed” with permission to work. The application, once submitted, is considered by the Standing Committee, which assesses whether to grant permission to work whilst the asylum claim is being adjudicated. Part of the assessment is consideration of available means of support, e.g.: friends, family, or charitable organisations.
An individual who is granted the “endorsement to work” is required to give evidence of employment within six (6) months of the date of endorsement or risk having this endorsement removed from their asylum seeker documentation.