Immigration South Africa - Julian Pokroy Immigration Law Attorneys

This article was first published in HR Future in January 2005

BREAKING NEWS

IS AN IMMIGRATION “AUDIT” IN THE WORKPLACE NECESSARY?

With the advent of the immigration act number 13 of 2003 it became a criminal offence for an employer to employ a foreign national without the requisite current, valid and appropriate work permit.

Section 49 (3) of the immigration act provides as follows:

Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this act shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year, provided that such person’s second conviction of such an offence shall be punishable by imprisonment not exceeding two years or to a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding three years without the option of a fine.

In terms of the Immigration Act the onus shifts on to the employer to prove that the foreign national in his /her employ is possessed of an appropriate and current work permit.

A further aspect which must be dealt with relates to an issue not directly flowing from the Immigration Act but rather from the Civic Affairs legislation and the amount of false identity documents that are in circulation or have been obtained fraudulently and what should you as an employer, director or HR manager be doing about it.

An application for work permit is a complex and administratively onerous process. This process requires a host of documentation and most importantly requires lodgement in normal course of business with the Department of Home Affairs regional or district office in the geographical area of jurisdiction where the foreign national will either work and will reside. In fact even if an application for a work permit is lodged in another geographical area, in terms of the regionalisation directives of the Department of Home Affairs, the application must then be forwarded to the geographical area where the applicant will work and live, for processing and finalisation.

Based on this latter premise one of the first items to look for would be a person working in a large centre whose work permit has been stamped by a lesser district office remote from the area of geographical jurisdiction where the foreign national will be working and residing. This is not a hard and fast rule but would be an indication that there is possibly something untoward about the permit and that the authenticity of such permit should be looked into.

A further hint would be to look at the actual permit very carefully. The permit which has been granted at an Embassy, High Commission or Consular Mission abroad and which has been endorsed at that Consular Mission would be a beige rectangular permit bearing a Department of Home Affairs crest and a printed certification duly endorsed by the consular office and also bearing a bar-code. Very often a primitive colour photocopy of the permit is placed in the individuals passport thereby indicating almost certainly that it is a fraudulent permit. If you are in doubt consult a specialist immigration attorney or even the Department of Home Affairs to verify the permit.

A work permit granted at a regional or district office of the Department of Home Affairs would always be a narrow pale green bar-coded sticker placed in the passport. Items to look for would be alterations on that permit, or issue by an office outside of the jurisdiction geographically of where the foreign national will reside or work .

Permanent residence permits are generally the most common permits to be issued or copied fraudulently. A permanent residence permit is an A4 sized certificate, which under the Aliens Control Act was a pale green certificate and bearing a serial number and all the particularity of the applicant together with any conditions which may apply to the application. The Immigration Act number 13 of 2004 presented a new type of certificate into which several safety features were brought about including a hologram at the centre base of the certificate. However many employers never see this certificate as the next step in permanent residency is for the applicant to have their permanent residence permit the endorsed on to their passport and the employer then only sees the endorsed passport.

Under the Aliens Control Act this was done by way of a rubberstamp at the office of issue which was then endorsed with the permit, signed by the relevant official, dated and then rubberstamped with the date stamp of that office. This was the easiest permit to forge and it is my belief that they are more false permanent residence permits of this nature floating around the country then any other kind of false permit.

With the advent of the Immigration Act number 13 of 2004 a new type sticker permit, rectangular in shape and beige in colour was introduced. Unfortunately it does not have any safety features and will probably lend itself to falsification.

The easy way to determine false permanent residence is generally when the applicant has to take the next step after having his/her permanent residence in endorsed on their passport as it is incumbent on the applicant, once his/her permanent residence has been endorsed, to present their residence permit together with the passport, birth and marriage certificates to the nearest district or regional office of the Department of Home Affairs and apply for a South African green bar-coded identity document.

Once granted the identity document would look much the same as that being issued to a South African citizen save for the fact that it will reflect that person as an "non citizen" quite clearly. It will also reflect a person as having been born outside of South Africa. The last three digits of the identity number would also be indicative of a non citizen and therefore that the person has obtained their residence by way of an application for permanent residence. If the foreign national exhibits and identity document which indicates him/her as being a "South African citizen" then in all probability something is amiss. If that identity document reflects them as having been born in a South African town then this would in all probability indicate again that something is again amiss.

A further complication arises where an employee presents an identity document and advises that they did not apply for permanent residence, but are reflected on their identity document as being a citizen. Whilst there is a way of acquiring citizenship without permanent residence in the form of an application for Citizenship by Descent as set out in the South African Citizenship Act, this would have had to have been preceded by an application for determination of status and the applicant having provided sufficient documentary proof that his/her parent (s) were South African citizens at the time of their birth. Such identity document, of the citizenship has been determined, would indeed reflect the applicant as a citizen notwithstanding the fact that the applicant was not born in South Africa. This only confuses the issue and becomes just another reason why an “audit” or verification of this nature should take place.

The simple way of dealing with the verification would be to ensure that you do contact either the Department of Home Affairs or an immigration law specialist attorney and request a verification exercise, bearing in mind the onerous sanctions which can be imposed on an employer employing a foreign national who is not possessed of the requisite work permit or permanent residence permit.

A work permit is generally granted for periods of one, two or three years and any permit the endorsed on a passport for a longer period must therefore be queried.

Work permits are employer specific and an applicant may not change employer without bringing the mystery application for change of conditions of his/her status. The HR department of the employer should certainly read the wording on the permit issued, very carefully.

It is always important for the HR department to keep a copy of the applicant passport and other relevant papers to his/her work permit on the personnel file of such foreign national in order to satisfy our immigration and labour laws.

Julian Pokroy is a senior practising Attorney, Member of the Immigration Advisory Board to the Minister of Home Affairs, Chairman of the Immigration Law Committee of the Northern Provinces, was Ministerial appointee to head the Association of Immigration Practitioners of South Africa and was recently appointed to head the Immigration law specialist committee of the Law Society of South Africa.
Visit www.immigration-sa.com