The government is adopting a zero-tolerance stance on the hiring of illegal foreign workers in South Africa, says Ben Makhalemele, deputy director of corporate accounts at the Department of Home Affairs.
Makhalemele, who was speaking at Xpatweb’s recent global mobility conference in Johannesburg, said that his department has developed a clear mandate on addressing immigration in South Africa.
This includes:
- Facilitating and regulating the secure movement of people through the ports of entry into and out of the Republic of South Africa;
- Confirming and providing enabling documents to foreign visitors legally residing within South Africa;
- Enforcing immigration legislation and effect deportations;
- Determining the status of asylum seekers and regulate refugee affairs; and
- Contributing towards realising a positive skills migration trend into South Africa.
Makhalemele said that the department is ‘well aware’ of the volume of foreigners who are residing in our country illegally, with either fraudulent paperwork or no status whatsoever.
He implored all employers to ensure that all of their expatriate staff are in possession of legally obtained and issued work visas.
He explained that the department is taking a ‘no-mercy’ stance and cautioned all employers that, should they be found to have illegal expats, they will be fined, and both the owner/chief executive of the company as well as the Head of HR of the company may face criminal charges and imprisonment.
He explained that they are currently working their way through businesses and arresting both the illegal expats, as well as the relevant company representatives; he confirmed that he has personally been part of this operation.
Quota system
Makhalemele’s comments come as the Department of Employment and Labour finalises two new documents which will tighten employment laws, including limitations on the hiring of foreigners.
Speaking on the changes in June, labour minister Thulas Nxesi said the National Labour Migration Policy would include limitations on the hiring of foreigners.
He noted that the policy aims to achieve a balance across several areas, including:
- The first is to address South Africans’ expectations regarding access to work opportunities, given worsening unemployment and the perception that foreign nationals are distorting labour market access. The NLMP, together with proposed legislation, will introduce quotas on the total number of documented foreign nationals with work visas that can be employed in major economic sectors such as Agriculture, Hospitality and Tourism, Construction, etc.
- The NLMP will be complemented by small business interventions and enforcement of a list of sectors where foreign nationals cannot be allocated business visas and amendments to the Small Business Act to limit foreign nationals establishing SMMEs and trading in some sectors of the economy.
- The Department of Home Affairs is reviewing current legislation and strengthening the Border Management Authority to secure porous borders and to allow for the orderly movement of people and other nationals through ports of entry only.
- Government plans to ramp up inspections to enforce existing labour and immigration legislation.
Nxesi said the National Labour Migration Policy goes hand in hand with the proposed Employment Services Amendment Bill, which provide the legal basis to regulate the extent to which employers can employ foreign nationals in their establishments while protecting the rights of migrants.
The proposed amendments to the Employment Services Act aim to limit the extent to which employers can employ the number of foreign nationals in possession of a valid work visa in their employment,” he said.
It will also place several obligations on an employer employing foreign workers, including:
- Only employ foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act, or any other provision;
- Ascertain the foreign national is entitled to work in the Republic in the relevant position;
- Satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy;
- Prepare a skills transfer plan, where appropriate;
- Employ foreign nationals on the same terms as local workers; and
- Retain copies of relevant documentation.
