Recent announcements by President Cyril Ramaphosa regarding the government’s approach to migration management have renewed focus on employer compliance with South Africa’s immigration laws. Among the measures announced were increased workplace inspections, stricter enforcement initiatives, and proposed legislative amendments aimed at regulating the employment of foreign nationals. While many of these developments remain subject to implementation, employers should take the opportunity to review their current practices and ensure ongoing compliance with applicable immigration and labour legislation.
Employers Must Verify Work Authorisation
Employers are legally prohibited from employing foreign nationals who are not authorised to work in the country. Employers should therefore take reasonable steps to verify that foreign employees possess valid documentation permitting them to work and should retain copies of such documentation for record-keeping purposes. Verification should not be limited to the recruitment stage. Employers should also monitor expiry dates and engage proactively with employees where permits or other authorisations are approaching expiration.
Foreign Nationals Remain Protected by Labour Legislation
Although employers are required to comply with immigration legislation, foreign nationals employed in South Africa continue to enjoy protection under the country’s labour laws. Employers should therefore avoid adopting a blanket approach when concerns arise regarding an employee’s immigration status. Each matter should be assessed on its own facts, and employers should ensure that affected employees are afforded an opportunity to respond and provide relevant information before decisions are taken.
Addressing Expired or Invalid Documentation
Where concerns arise regarding an employee’s ability to lawfully continue working, employers should conduct a proper investigation and engage with the employee regarding the status of their documentation. Depending on the circumstances, employers may be required to follow an appropriate incapacity or other fair process before any decision affecting employment is made. Employers should avoid taking precipitous action without first obtaining appropriate advice and considering the relevant legal framework.
Increased Enforcement Measures
Government has indicated its intention to increase workplace inspections and strengthen enforcement mechanisms relating to immigration compliance. Employers should therefore ensure that employee records are accurate, documentation is maintained, and internal procedures adequately address immigration-related compliance obligations.
Conclusion
The employment of foreign nationals remains an important feature of many South African workplaces. Considering government’s renewed focus on migration management and enforcement, employers should review their recruitment, verification, and record-keeping practices to ensure ongoing compliance with applicable legislation while continuing to uphold principles of fairness in the workplace.
