The purpose of this article is to give insight into how best to manage the risks associated with South African work visa applications for both foreign nationals and companies employing foreign nationals.
The Immigration Act 13 of 2002 (“Act”) allows for and provides several work related visas. These include the general work visa, critical skills work visa and intra-company transfer visa (collectively, “SA Work Visa”), which are found in section 19 of the Act. The Act further allows for a spousal visa with a work endorsement under section 11(6) as well as opportunities to apply for permanent residency for foreign nationals who have been on a work visa for a continuous period of five years or who possess a critical skill, five years of post-qualification experience and have an offer of employment from a South African company pursuant to sections 26 and 27 of the Act.
Included in the requirements to acquire the abovementioned SA Work Visas are documents and undertakings from South African employers. Section 18(1)(a) of the regulations to the Act state that applicants of an SA Work Visa are required to submit a written undertaking by the employer accepting responsibility for the costs related to the deportation of the applicant or their dependant family members should the need arise.
Employers are risk averse and oftentimes hesitant to provide such undertakings. The risk assessment often results in delays for applicants, and in certain cases, the loss of the applicants immigration status and employment. The courts have found that where an employer omits to actively assist an employee to keep their immigration status, the omission amounts to a form of unfair dismissal and constitutes an unfair labour practice under the Labour Relations Act 66 of 1995 (“LRA”). Section 186(1)(e) of the LRA further provides that; if an employee terminates employment with or without notice because the employer made continued employment intolerable for the employee, the dismissal is unfair.
Companies risk reputational damage as well as paying damages pursuant to South African labour laws while foreign nationals are at risk of losing their livelihoods and ability to remain in the country if provision of necessary documents is delayed or denied. Given the lack of know-how and the costs associated with litigation, many foreign nationals do not seek recourse when an employer refuses to sign an undertaking of repatriation or provide the supporting documents needed for their visa application.
In order to mitigate the risks associated with deportation costs, employers can open trust accounts and agree with expatriate employee’s that a part of the their salary will be paid into a trust account, to be utilised in the event of deportation. Should the employee’s employment come to an end, the employee will be entitled to the full amount held in trust.
We are fortunate to work with companies that pride themselves on following fair labour practices, however, the reality is that there are many companies that do not. Active participation is required from the Department of Labour and the Department of Home Affairs to educate both employers and foreign nationals with regard to compliance with immigration and labour laws and practices.
We assist both companies with expatriate workforces and expatriates with all SA Work Visa’s and we are committed to ensuring that our clients follow and are the recipients of fair labour practices in the context of immigration law.
Author: Emelinah Tshelane