Immigration Inspectorate Cracks Down on South African Employers

In light of recent events, the parliamentary portfolio committee on Home Affairs has been taken to task over issues centered on the prevalence of illegal foreigners within South Africa’s borders and the perceived inability on the part of the government to keep track of their entrance and continued residence in the country. The proposed new International Migration White Paper, put forward by the Department of Home Affairs, will see substantial investment injected into the Immigration Inspectorate in order to improve detection and prosecution of illegal foreigners.

These illegal foreigners residing in South Africa face severe penalties upon detection. The Immigration Act provides immigration officials with wide-ranging powers when it comes to the arrest, detention and deportation of illegal foreigners. An officer within the Immigration Inspectorate is entitled to arrest an illegal foreigner, without the need for a warrant, and deport or detain said foreigner. The foreigner may be held in detention for up to 90 days. A foreigner who remains in South Africa in contravention of the Act shall be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding 2 years. If the inspectorate elects to instruct a foreigner to depart South Africa and said foreigner fails to do so, he or she shall be liable upon conviction to a fine or imprisonment not exceeding 4 years.

Illegal foreigners are encouraged to depart South Africa of their own accord in order to avoid the above mentioned penalties. A foreigner who has overstayed his or her visa will still, however, be penalised upon departure and issued with a ban prohibiting re-entry into South Africa for a period of up to 5 years.

It has recently emerged that, since 2010, approximately 330,000 foreigners have overstayed their South African visas and remained in the country illegally. This is commonly viewed as the result of government failing to significantly invest in methods aimed at policing illegals residents. This is, however, only the tip of the iceberg and the government is well aware of the need to successfully implement a policy framework to ensure that South Africa’s immigration policies stand alongside those of leading world powers.

On 23 April 2015, the Honourable Minister of Home Affairs, Malusi Gigaba, advised parliament that the Department of Home Affairs is working towards completing a new International Migration White Paper aimed at overhauling South Africa’s entire immigration policy framework.

Of particular relevance to South African businesses is the Minister’s assertion that R118 million is to be invested in increasing the capacity of the Immigration Inspectorate over the course of the next 3 years. The Inspectorate is tasked with the policing of illegal foreigners within South Africa and the increased capacity will allow it to focus on the effective detection and prosecution of companies employing undocumented migrants and foreigners whose visas have expired. The Inspectorate will be looking to increase the frequency of raids on companies suspected of employing illegal foreigners in an attempt to clamp down.

The Immigration Act imposes substantial fines and terms of imprisonment for companies and employers who are deemed to have knowingly employed illegal foreigners and it is clear that the inspectorate, with the backing of the Department of Home Affairs, has deemed this area to be one which requires more stringent regulation. As a result, it is becoming increasingly necessary for companies to ensure that they are compliant with all aspects of the Immigration Act at all times. A failure to do so, is likely to lead to severe repercussions.

Companies currently employing illegal foreigners and wishing to legalise their staff can contact us at overstay appeals for further information and assistance.