“ A foreigner shall abide by the terms and conditions of his or her status including any terms and conditions attached to the relevant visa or permanent residence permit as the case may be, and that status shall expire upon the violation of those terms and conditions; and shall depart upon expiry of his or her status”, states Section 43 of the Immigration Act.
The Act imposes obligations on foreigners residing in the country and on third parties such as employers, banks and landlords alike. Section 38-45 of the act is appropriately headlined Duties and obligations and details the various persons bound by the Act and their respective duties and obligations. It is important that a person be familiar and comply with the terms and conditions of their status and to be aware of the consequences of non-compliance. This article explores this aspect of the South African Immigration landscape as well as offers advice on what to do if you find yourself on the wrong side of the Act.
Employers
Section 38 provides that no person shall employ an illegal foreigner, a foreigner whose status does not authorize him or her to be employed by such person and a foreigner on terms and conditions or in a capacity different from those contemplated in such foreigners status. The act then specifically provides that an employer is required to make a good faith effort to ascertain the status of each person who is in their employment. An interesting point in this regard is a presumption that arises against an employer on whose premises an illegal or unauthorized foreigner is found.
Section 38(5) provides that if an illegal foreigner is found on an employer’s premises it shall be presumed that the person was duly employed by such person and in the absence of prima facie evidence to the contrary it is presumed that employer knowing employed the person in violation of the Act in section38(1). What this means practically is that if an employer is found to be employing an illegal foreigner or an unauthorized foreigner it is incumbent upon that employer to prove that he was not aware of this fact and that he or she made best efforts to ascertain the status of that person.
Section 49(3) of the Act makes violation of section 38 a statutory criminal offense and on conviction punishable by imprisonment not exceeding 1 year or a fine, on a second conviction 2 years imprisonment or a fine and on a third conviction imprisonment not exceeding 5 years without the option of a fine.
Learning Institutions
Section 39 contains a similar prohibition on proving training or instruction of an illegal or unauthorized foreigner. This means institutions are not allowed to have a person without a study visa or status allowing them to study at that institution receive any form of training or instruction. The presumption rule also applies in this regard meaning that the head of that institution will have to provide evidence that they were not aware of the person’s status at the time of their enrolment. It is also a criminal offense in terms of section 49(6) which carries a potential sentence of up to 5 years or a fine.
Organs of state
Section 44 places an obligation on state organs to ascertain the status or citizenship of the persons receiving its services and to report to the Director-General of Home Affairs persons whose status could not be ascertained. Importantly though the section goes on to state that such requirement shall not prevent the rendering of services to which illegal foreigners and foreigners are entitled under the constitution or any law. This means that institutions such as hospitals or clinics may not refuse care because a person is an illegal foreigner however they must inform the Director-General.
Banks, Estate Agents, and other prescribed institutions
Section 45 places obligations similar to the ones above on banks, estate Agents, insurance companies and private hospitals. The legal requirement here is to report to the Director-General and not to deny services. Banks are notorious for closing accounts on the basis that a person’s visa has expired and pointed to the Financial Intelligence Centre Act or FICA as the basis of this move, suggesting that there may be a conflict between the Immigration Act and FICA. A quick scan of FICA will show in section 21 that prescribed institutions are required to positively identify the identity of a person and makes no mention of the person’s status in the republic. Arguably a person’s status may speak to the lawfulness of the funds he or she is in receipt of or seeking to access however that requires an in-depth assessment rather than a blanket approach to simply close a persons account. Banks that engage in this activity may be susceptible to a legal challenge especially in circumstances involving an existing relationship and where damages can be proven and linked to the action of blocking an account.
Compliance with a person’s immigration status and obligations is a very serious issue for the foreigner and third parties alike and whilst immigration enforcement in this regard tends to be lax it is nevertheless very risky to reside in the country in violation of your status conditions. It is, in fact, a crime which carries severe penalties and must be addressed as soon as possible.
For assistance with your immigration matter, you can contact us at our offices and speak to one of our specialists.
Munyaradzi Nkomo
Lead Immigration Specialist at Strategies Migration Services SA
Email: munya@immigrationspecialists.co.za or info@immigrationspecialists.co.za
Cell: +2774 337 0269
Tel: +2711 463 5011
www.immigrationspecialists.co.za