With the discontinuation of Zimbabwe Exemption Permits beyond 2022, holders of ZEPs can only stay in South Africa if they qualify for an ordinary visa. Understandably, employers of Zimbabwean citizens find themselves frustrated and caught in between the law and operational necessity.
Simultaneously, negative sentiment and rhetoric towards both legal and illegal immigrants has been on the rise, supported by some political parties and the Minister of Home Affairs himself. Increasing legal inspections of businesses has led to arrests of corrupt officials and fraudsters, while some have simply taken it upon themselves to conduct illegal inspections of businesses -often only for political gain. A large corporation was taken to court for allegedly employing too many foreigners.
In these unsettling times for employers who, for a variety of reasons, rely on staff from outside the country, the solutions remain unclear.
So, what can business owners expect in terms of policy, and how can they build resilience within their businesses?
The Gap Between Policy Goals and Implementation on the Ground
The recently published Draft National Labour Migration Policy (NLMP) and the Draft Employment Services Amendment Bill (ESAB) offer up the latest pointers on government policy.
The potential for positive change in progressive proposals
At first glance, the NLMP appears to be a balanced and thorough analysis of the status quo. It considers poverty levels, unemployment numbers and economic, historical, regional, and geopolitical factors. And it recognises that labour migration in and out of South Africa is a phenomenon linked to these factors on top of the longstanding cultural linkages between Southern African peoples.
Acknowledging the opportunities that lie in labour migration for all parties involved, the NLMP seeks to strike the balance between protecting local workers and encouraging migration that bolsters the economy and creates more jobs.
Amongst other progressive proposals, the NLMP proposes “SADC special work visas” for specific sectors, occupations, and nationalities, which would be based on revised bilateral agreements. In recognition of natural migration flows and regional economic imbalances, the NLMP also recommends creating legal pathways for low-skilled workers from SADC countries into the South African labour market.
The potential for conflict of interest in its custodianship
What is, however, concerning is that the NLMP proposes the Department of Employment and Labour (DEL) be the custodian of everything relating to worker migration.
Migration policy is a balancing act between labour, business, and human rights. By its nature, the DEL represents the interests of South African workers and is closely aligned with organised labour. It can therefore not be considered a neutral party and is wholly unsuitable for the role of custodian.
Shifting overall responsibility for labour migration – which involves considerations of human and constitutional rights, international treaties, and economic interests – from the Department of Home Affairs (DHA) to the DEL amounts to tilting the boat to one side.
The problem with the DEL‘s historical performance
Furthermore, there is a major gap between the functions envisaged for the DEL in the NLMP and its historical (in)capacity to deliver on those functions, based on past performance. Even with a phased approach, it is questionable whether the DEL can ever be sufficiently capacitated to perform such a significantly inflated role.
The DEL`s lack of balance is most evident in the selective application of only certain NLMP recommendations in the Draft Employment Services Amendment Bill (ESAB), ones which align with its political goals and appease its labour constituencies, while others remain ignored.
The issues of clarity and legality arising from a poorly drafted bill
The ESAB lacks key definitions and differentiations, duplicates and blurs the lines between immigration and labour laws, and in its section 12A(2)(b), attempts to sneak in a requirement that fundamentally undermines much of the work visa regime that is currently in place.
It places an obligation on employers of any non-South African (except permanent residents and recognized refugees, but for lack of definition including asylum seekers, spouses of South Africans, seconded staff, young people doing cultural exchanges and persons with critical skills) to “satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy”.
The ESAB does not specify how an employer is to meet that obligation.
Similarly, requirements currently in place for general work visas and corporate visas only, have been made increasingly impossible to fulfil through the DEL effectively refusing to issue the necessary recommendations.
Consequently, these visas are now rarely applied for, if ever.
The ESAB seemingly seeks to enable the DEL to apply this same requirement to all visa and permit categories that allow for employment of any nature.
This would not only essentially create an insurmountable hurdle for employers, leaving them with no workable options, but also be unconstitutional and against the spirit of a range of other laws and international agreements. And surprising if it were not challenged in court if passed as it stands.
The legal flaws in blanket requirements and quotas
Furthermore, the blanket requirement of a skills transfer plan as anticipated in the ESAB, is in part duplication and in part contradiction of the provisions of the Immigration Act as well as the recommendations of the NLMP.
There is no reasonable justification for its blanket introduction.
Lastly, the ESAB empowers the Minister of Labour to set quotas for the employment of foreign nationals in any sector. Even though it excludes holders of critical skills visas from the quotas and provides possibilities for further exemptions, it still gives the DEL considerable leverage and scope to disrupt business operations: placing the onus on employers to motivate to migration-sceptical bureaucrats for larger staff contingencies of foreign nationals.
The Proposed Response for Employers
Hope for the best, prepare for the worst
Despite the seemingly bleak picture presented here, the current system still leaves room for work visas to be issued where cases have merit.
Although the draft policies and laws discussed here contain serious flaws, they also hold opportunities for employers of low-skilled foreign staff. Whether they will end up being implemented, and in what form, remains to be seen.
In the meantime, employers are not without options.
What can (and should) employers do?
These are some steps that can be taken to help prevent harmful rules from becoming law, to protect businesses and build resilience in a progressively stricter labour migration system.
- Contribute to the (SA)UEO submission in response to the draft NLMP and ESAB.
Details of the information needed from employers will follow.
- Get your house in order
Irrespective of the policies and draft legislation discussed above, authorities will increasingly enforce existing laws and inspect businesses for immigration law compliance. So, ensure that your employment conditions are legal, fair, and equitable for both the South African and the non-South African staff and workers. This will protect you from hefty fines and even imprisonment. Conduct an immigration compliance audit of your workforce and take the necessary steps to fill any gaps that may show up.
- Plan your recruitment and staffing with visa limitations in mind.
Recruit candidates that qualify for visas, and plan ahead to allow for the necessary lead times. Engage professionals with proven track records to guide you, avoid fly-by-night consultants.
- Prepare your arguments and be ready to lobby.
Be ready to lobby for inclusion in possible industry exemptions and bilateral agreements for the regional migration of low-skilled staff as envisaged in the NLMP.
Although the current trend seems to be reducing employment options when it comes to non-South African staff, in our experience these policy waves come and go, and the system eventually balances itself out. With intentional action and preparation, businesses can limit their risk in the meantime.
More about Julia Willand
Director / Assessor iuris / MA Critical Diversity Studies / Immigration Practitioner IP(SA)
Julia is a trained attorney, registered Immigration Practitioner, and holder of an MA in Critical Diversity Studies. She is founder and Co-Director of the immigration consultancy IMCOSA, and was a member of the Immigration Advisory Board during the time when the current visa system was designed.
More about IMCOSA
IMCOSA is a consulting firm specialising in the field of South African VISA and immigration law, with offices in Cape Town and Centurion. With our over 50 years of experience in our management team and our unprecedented success rate in the field of immigration, we provide professional, individual, accurate and reliable visa and immigration compliance advice and support. Our professional team of consultants is led by qualified lawyers and registered immigration practitioners, trained and experienced in all aspects of South African immigration law.