Employment of Illegal foreigners – what employers need to know

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Employment of Illegal foreigners

The Department of Employment and Labour (DEL) has recently stepped up its inspection raids relating to the employment of illegal foreigners. These actions have attracted significant media attention. Most notably, these inspections have been prominent in the hospitality industry.

As a result of these inspections, approximately 80 people working in restaurants across the country have been arrested. They were arrested for violating the provisions of the Immigration Act 13 of 2002. These violations occurred due to their failure to produce the requisite documentation.

The arrest of illegal immigrants

The arrests included restaurant owners, managers, human resource practitioners, and foreign national employees.

Section 38 of the Immigration Act obliges employers to ensure that they do not employ:

  • An illegal foreigner.
  • A foreigner whose status does not authorize them to be employed by such a person.
  • A foreigner on terms, conditions, or in a capacity different from their status.

In complying with their obligations, employers are required to make a good faith effort. This effort ensures that no foreigner is illegally employed. Employers must also determine the status of any foreigner who is employed.

Verification of permits

Where an illegal foreigner is employed, the employer needs to be aware of how to manage the situation. This is crucial to avoid claims in the Commission for Conciliation, Mediation and Arbitration.

As the DEL has confirmed that it will continue with compliance inspections, employers are advised to act. These inspections will clamp down on contraventions of the Immigration Act. Employers should audit the employment status of foreigners. This will help them avoid being caught on the wrong side of immigration, employment, and criminal laws.

The audits are wide-ranging and should include verification of the validity of work visas or permits. Employers must understand the employment restrictions that apply to each individual.

Any inspection by the DEL or the Department of Home Affairs (DHA) must be conducted in accordance with prevailing laws. These laws regulate the right of entry to a workplace. They also govern the ability to search, inspect, seize documents, and arrest people suspected of criminal offenses.

Unlawful versus lawful inspections

Over the last decade, employers have regrettably become accustomed to political parties such as the Economic Freedom Fighters. Organisations like Operation Dudula (and others) have insisted on conducting their own inspections. These inspections have often resulted in conflict, as they were unlawful.

However, inspections by the DEL and the DHA, conducted in accordance with the law, should be welcomed. Law-abiding employers can use these inspections to ensure compliance with immigration, employment, and occupational health and safety laws.

Employers should be prepared. The Minister of Employment and Labour has recently indicated that the Inspectorate Capacity will be increased.

Over the Medium-Term Expenditure Framework period, the number of inspectors will increase from 2,000 to 20,000. This expansion will enhance the effectiveness of compliance inspections.


Imraan Mahomed | Director | Employment Law Practice | mail me | 
Taryn York | Senior Associate | Employment Law Practice | mail me |
Mapaseka Nketu | Immigration Paralegal | mail me |
| Cliffe Dekker Hofmeyr |

Related FAQs: Employment of Illegal foreigners

Q: What are the requirements for employing foreigners in South Africa?

A: Employers must ensure that foreign employees possess valid working visas or permits that authorise them to work in South Africa. Employing foreigners without the necessary authorisation can constitute a violation of the Immigration Act, leading to penalties.

Q: What is the risk of employing foreigners without the proper authorisation?

A: Employing foreigners in violation of the immigration act shall be guilty of an offence. This can result in heavy fines and legal repercussions for the employer, including potential criminal charges.

Q: How does the Labour Relations Act affect the employment of foreign nationals?

A: The Labour Relations Act 66 of 1995 (LRA) governs the rights and obligations of employers and employees, including foreign employees. It provides a framework for fair dismissal processes and protects against unfair dismissal claims for all workers, including those who are foreign nationals.

Q: Can foreign employees claim unfair dismissal under South African law?

A: Yes, foreign employees are entitled to claim unfair dismissal under the Labour Relations Act. If a foreign employee is dismissed without just cause, they may approach the CCMA for recourse, as the CCMA’s jurisdiction extends to all employees within South Africa.

Q: What should I do if I suspect a foreign employee does not have valid work authorisation?

A: Employers have a duty to verify the employment status of all persons they employ. If you suspect a foreign employee is in violation of the Immigration Act, it is advisable to consult with a legal expert to understand your obligations and the necessary steps to rectify the situation.

Q: Are there any specific sectors where employing foreigners is more common?

A: Yes, certain sectors in South Africa, such as agriculture, construction and hospitality, often employ foreigners due to skills shortages. However, employers must still adhere to the requirements of the Immigration Act and ensure that foreign employees have the necessary work permits.

Q: What documentation is needed when hiring foreign nationals?

A: Employers must obtain copies of valid work permits or visas from foreign nationals before employment can commence. This documentation serves as proof that the foreign employee is authorised to work within South Africa.

Q: What are the consequences of dismissing a foreign employee without due process?

A: If a foreign employee is dismissed unfairly, they may be entitled to reinstatement or compensation. The CCMA can rule on such matters and employers may face legal challenges if they do not follow fair procedures as stipulated in the Labour Relations Act.

Q: How can employers ensure compliance with employment laws when hiring foreigners?

A: Employers should familiarise themselves with the South African Immigration Act and the Labour Relations Act. Additionally, seeking guidance from legal professionals specialising in employment law can help ensure compliance and avoid potential legal issues.





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