Preparing Your Organisation for an Immigration Compliance Inspection in South Africa

Like in many countries around the world, immigration management remains at the top of the public debate. At the heart of the debate is the perceived failures of the authorities to manage immigration systems effectively and efficiently.

In South Africa specifically, this is exemplified by the perceived uncontrolled number of migrants entering the country to look for opportunities and the contravention of immigration law by some companies through employment of foreign nationals without work authorisations.

Therefore, a growing and worrying trend seen across the economic spectrum in South Africa is the lack of preparedness of companies for an unannounced immigration compliance audit.

This lack of preparedness is common around the world as the authorities are known to react after a receipt of whistle blow reports or even complaints of disenfranschisement from the communities.

Failure to be compliant with immigration laws generally has financial, operational and reputational risks that may perpetually keep a company under undue scrutiny of authorities.

Immigration Compliance in South Africa

Although South Africa does not have a mandatory reporting system for employers to confirm compliance with aspects of immigration, like skills transfer or workers’ ratio, the law prohibits the employers from, among other things, hiring illegal foreigners or hiring a foreign national whose status does not allow him or her to be employed or to employ a foreigner on terms and conditions different form those stated in the visa.

Additionally, employers have a responsibility to make a sincere effort to ensure that they do not employ individuals without the proper legal status.

In effect, every employer is required to ensure that a document presented to for employment purposes is checked with relevant authorities before beginning employment. Failing which, such an employer is subject to arrest and may on conviction be subject to a fine or imprisonment.

As South Africa is currently under its new administration after the May 2024 election, there is a drive to stabilise the economy. The new administration plans to increase the number of immigration inspections at restaurants, spaza shops, farms and mines by more than 50%, and to act against people illegally employed, including through deportations. The scope of immigration inspections will also likely be broadened to other sectors where non-compliance is detected.

For the last few weeks, the immigration authorities, working together with other law enforcement agencies and the Department of Employment and Labour (DoEL), have been involved in inspections throughout the country. This has resulted in many employers and foreign nationals being arrested in the process and charged in the process.

Becoming Immigration Audit-Ready in South Africa

In many countries around the world, companies generally have statutory obligations with which they must comply with on a regular basis.

In South Africa, that can entail, among other things, remitting taxes, providing monthly or quarterly reports on the composition of the organisation’s staff complement and remitting levies for skills development to the authorities.

Complying with the immigration rules must always be at the forefront of employers’ minds. In South Africa, being ready for an immigration compliant audit entail undertaking the following measures regularly:

• Keeping certified copies of the passport and visas of foreign national employees and updating them when they expire/ when new ones are issued;
• Ensuring that the passports of employees are valid at all times;
• Ensuring that their foreign national employees comply with the conditions stated in the visa;
• Informing the authorities of any change in their employment status so that a visa can be cancelled if the employment relationship has ended. Although the law does not provide a specific timeframe, informing the authorities within at least 30 working days is reasonable; and
• Keeping the records of the employment of a foreign national. By law, employers must retain such records for at least two years after the foreign national has left the employment.

Of great importance in being immigration compliant-ready is to always have the support of a trusted immigration advisor. Such an advisor can develop an immigration readiness strategy, can be available during any workplace immigration audit by the authorities and can assist in answering questions posed by the authorities.

It is important to note that leveraging technology can go a long way in making a company’s immigration compliance strategy more robust. Besides making a company compliance-ready, it can assist in identifying issues worth resolving long before the authorities start the immigration audit, such as preventing challenges arising from employees’ expired work visas or passports.  

Above all, empowering an organisation’s leadership and human resources professionals about the company’s immigration compliance strategy is vital.

This can be done through an in-house immigration training on the country’s immigration process done by a trusted immigration advisor annually – with updates on policy developments on a quarterly basis.

Need to know more?

Immigration compliance is important for businesses, providing peace of mind and supporting good corporate citizenship. It can be helpful to have the guidance of a trusted immigration advisor and to utilize technology to make the process smoother and more manageable.

For more information regarding South Africa’s immigration regulations, please contact Director Johannes Tiba at [email protected].

This blog was published on 23 September 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.