Archive from February, 2018

Gauteng school threatens to take immigrant children to cops

24 February 2017, African News Agency
Johannesburg – The Gauteng Department of Education (GDE) on Friday requested the Eastleigh Primary School to withdraw its letter that threatened foreign nationals that their children will be sent to the police station if their immigration documents weren’t updated.
The letter to parents who are foreign nationals, requested them to update their information by producing original immigration permits or face the prospect of having their children removed from the school by the police.
The letter was circulated on social media.
The school said had been visited by SA Home Affairs officials whom it said instructed it to take the drastic action. However, GDE spokesperson Oupa Bodibe on Friday said the department had requested the school to withdraw it.
“As the department we support the need to comply with laws of the country, but caution that we need to be sympathetic and deal with it with empathy,” said Bodibe.
“So the school has been asked to withdraw the last statement, where it was threatening to send the children to the police station, but rather to tell parents that if they don’t comply they must keep their children at home.”

Rights of foreign kids trampled on

Rights of foreign kids trampled on
23 Jun 2018 – SA Migration
children — South African, from other countries and stateless — face being kicked out of the classroom, despite having a constitutional right to education and it being compulsory for all children to go to school.
The department of home affairs, under both its previous and new ministers, is not resolving the contradictions and schools are trapped by the department of education’s funding model that excludes children without the proper documentation.
Still fresh in our memories is the debacle at Eastleigh Primary School in Edenvale, Gauteng, in February. The school sent a letter advising “all foreign parents” that if they did not have up-to-date documentation for their children when they brought them to the school the following week, their children would be reported to the police.
The letter threatened: “If any foreign child arrives here on Monday we will phone the police to come and collect your child, and you can collect your child at the police station.”
The department of home affairs, through Twitter, said it had not advised the school to hand over pupils to the police if they were not properly documented.
Yet the department has also told civil society groups that it is empowered to hold a school’s principal accountable if pupils were undocumented and that this may result in a hefty fine.
That the school’s threat, addressed to “all foreign parents”, should happen at all is morally and constitutionally unacceptable. That it happens in the context of a society struggling to combat xenophobia and xenophobic violence is dangerously irresponsible.
“Xenophobia has been, and continues to be, a significant issue of societal injustice, and has led to widespread violence and displacement. The singling out of foreign nationals, and the imposition of unlawful and unreasonable threats to their fundamental right to education, is an irresponsible flaming of this fire and a poor example for educators to set for learners,” the Equal Education Law Centre said in its letter to Eastleigh.
Prior to the Eastleigh incident, several public-interest law centres worked for numerous clients whose children faced discrimination or exclusion from schools because of their nationality or lack of documentation.
The Equal Education Law Centre, the Legal Resources Centre, the Centre for Child Law, Section27 and Lawyers for Human Rights wrote to the departments of education and home affairs in March, requesting a meeting to discuss the best way to balance immigration regulation with the rights of all people in the country.
The letter emphasised the departments’ constitutional duties to protect the interests of all children in South Africa; the right to basic education is protected in section 29 of the Constitution.
“It is of great concern that the department of home affairs visited Eastleigh in the week prior to the school sending its letter, and appears to have exerted pressure with regard to undocumented learners. It is simply not constitutionally permissible for the department of home affairs to take this approach.
“While immigration control may be a legitimate government concern and function, it should never be addressed through the violation of children’s rights.”
Having received no response and with a new minister of home affairs in place following the president’s Cabinet reshuffle, we addressed a follow-up letter to the departments on May 2. Again, we received no response.
It is not only foreign schoolchildren who face this discrimination. Many South African parents who are not documented get turned away from schools for not being able to verify their status in South Africa. Children end up idle at home — often unsupervised — and without education.
Our organisations have intervened on behalf of children who are of compulsory schoolgoing age but have been outside the education system for up to two years. The children are prejudiced not only in those years, but in trying to catch up once they are finally placed.
In some of our cases, schools have been willing to extend the period for allowing the parents to regularise their status in South Africa but in other cases there has been less success.
Schools should not be vilified for this situation. Some, already stretched and penniless, cannot accept undocumented pupils if they will not receive state funds for them.
This is the case in the Eastern Cape, where the department of education has informed schools that no funding will be given to them for children without adequate documentation.
With the department refusing to revise its position, this decision is now the subject of a court review launched by the Legal Resources Centre on behalf of the Centre for Child Law in the Eastern Cape High Court.
Many poor families, both immigrant and not, are unable to afford the services of lawyers. Although we have been successful in finding placement at schools for many undocumented children, the systemic problem remains. It is not just education that is at stake, but the battle against the xenophobic undercurrents in our society. With this in mind, the need for civil society and the state to find solutions is more pressing than ever.
Child protection and advancement is at the forefront of our entire legal system. Rigid legislation and directives that threaten to limit that protection cannot be acceptable. National and provincial education departments will need to talk to each other, and to the department of home affairs, towards constitutionally sound solutions.
Nurina Ally is executive director of the Equal Education Law Centre and Kelly Kropman is an attorney at the Legal Resources Centre

The Rights of foreigners employed without valid work permits in South Africa

22 February 2018 – Strategies
Occasionally I get an email or a phone call from someone who has had his or her contract abruptly terminated or amended by the employer on the basis that their work permit is about to expire or has expired. In some instances when an employer discovers that the work permit or permanent residence status presented is for some or other reason fraudulent , terminates employment of the individual immediately. Those whose employment is not terminated find themselves in situations where they are not remunerated because they do not have a valid visa. This is often a common occurrence with government departments. So what is the legal position of a foreign national who is employed without a valid visa? Is the employment contract invalid? Can a contract be varied on the basis of the immigration status of the employee?
The immigration Act in:
Section 38(1) provides that no person shall employ (a) an illegal foreigner,( b) a foreigner whose status does not authorize him or her to be employed; (c) a foreigner on terms, conditions, or in a capacity different from those contemplated in such foreigner`s status
Section 49(3) 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 on such persons second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding 3 years without the option of a fine.
The above sections are often used to justify summarily terminating the employment of a foreigner whose status comes under dispute or changing the terms of the contract to less favourable terms and some instances the withholding of a salary for work done. Under different circumstances all the above would be considered unfair labour practices that would justify referring the employer to the CCMA.
Section 23 of the Constitution guarantees that EVERYONE has a right to fair labour practices and this includes foreigners both legal and illegal . It therefore seems that there is conflict between the Immigration Act and The Constitution. The immigration Act on the one hand appears to empower employers to dismiss anyone on the basis of their status or lack thereof and yet the Constitution guarantees that everyone has a right to fair labour practices and the protections from unfair dismissals etc.
This issue was the subject of the Labour Court in Discovery Health Limited v CCMA and Others JR2877/06. In this case Mr Lanzetta an Argentinean National was employed by Discovery Health whilst his work permit was endorsed with a condition to work for another employer. The permit then subsequently expired as a result of a delay by Discovery to issue Lanzatte with the requisite paperwork to apply for his permit. He was then immediately dismissed by Discovery on the basis that he no longer had a valid work permit. Naturally Lanzatte referred the dispute to CCMA who ruled in his favour however Discovery sought to challenge this in the Labour Court.
In their arguments the lawyers for Discovery health argued that the CCMA had no jurisdiction over the matter because only an employee as defined by the Labour Relations Act may claim protection from the Act. It was submitted that an “employee” was party to a valid contract of employment and since the contract concluded with an illegal foreigner was tainted with illegality then the contract was void ab intio. As a consequence thereof he was never an employee and thus could not claim the right not to be unfairly dismissed and the CCMA also had no jurisdiction over the matter.
The court in its assessment of the case pointed out section 38(1) and 49(3) referred only to the employer and not the employee. The judge highlighted that it is apparent neither section directly or indirectly declare that a contract concluded without the necessary permit is void nor does a person commit an offence by accepting work from or preforming work for another without a valid work permit.
In interpreting these provisions the court reminded the parties that if a statute is capable of interpretation in a manner that does not limit fundamental rights , then that interpretation should be preferred. The court relied on the Constitutional Courts Judgment in Numsa // Others and Bader Bop Pty Ltd.
The right to fair labour practices is a fundamental right and there is no clear indication from the Immigration Act or any other statute that it was intended to limit that right. The court reasoned that if section 38(1) were to render a contract of employment concluded by a foreign national who does not have a valid work permit void ,” it would not be difficult to imagine the inequitable consequences that might flow from a provision to that effect . An unscrupulous employer, prepared to risk criminal sanction , might employ a foreigner and at the end of the payment period ,simply refuse to pay the remuneration due, on the basis of the invalidity of the contract. In these circumstances , the employee would be deprived of a remedy in contract and in terms of labour legislation…”.
The court thus concluded that by criminalizing only the conduct of an employer who employs a foreign national without a valid permit and by failing to proscribe explicitly a contract of employment concluded in these circumstances ,the legislature did not intend to render the underlying contract invalid. This in the courts view was meant to be sufficient deterrent to employing foreigners without valid permits.
Parliament has since enacted the Employment Services Act. This is an important piece of legislation that among other objectives seeks to facilitate the employment of foreign nationals in manner that is consistent with the objects of the Immigration Act. The Act provides in section 8(4) An employee who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person who is liable in terms of the law.
It is clear from section 8 and the Discovery Health Case that being an illegal foreigner does not mean that one does not have other rights in law.
So what does this mean for the employee and employer?
For starters the relationship between employer and employees and its validity thereof is not dependent on the status of the employee. Neither is a contract the basis of the relationship, the absences of one does not render the relationship invalid. Employers may not terminate or vary contracts or withhold salary payments for the sole reason that the employee`s permit has expired or has been found to be invalid. The Employer must afford the employee every opportunity to rectify his or her status and assist the employee with the immigration process. Abdicating responsibility in this case may very well be considered an unfair labour practice in the form of constructive dismissal. Employers must create an environment that allows a foreigner to come forward and be assisted in these circumstances and not fear that in revealing their immigration challenges they will face dismissal. Employers must make a good faith effort to ascertain the true status of an employee before concluding a contract with him
Employees on the other hand must ensure that they have the requisite authorisation to take up employment and where they do not immediately take steps to rectify their status. Should one find themselves being dismissed or have their contract changed or salary withheld on the basis of their status only, then such conduct can be referred to the CCMA.

Visa conditions – SA Police Clearance Via VFS

22 February 2018 – Sa Migration
Your visa is subject to a number of visa conditions that you must comply with. Different visa conditions apply to you and members of your family unit.
Breaching a visa condition may result in the cancellation of your visa.
These pages provide information about the visa conditions that may apply to you and your dependent family members.
Replacement of the South African Police requirement with the biometric background checks in the application process for temporary residence visas and permanent residence permits at VFS Global Visa application centres within South Africa
• As part of the continuous service improvement and efficiency, the Department of Home affairs will be introducing a Biometric background check service which is linked to the South African Police service database.
• This service which will be provided at a value added cost of R175.00 (incl.VAT) will replace the requirement to submit the manual police clearance certificates obtained from SAPS.
• Applicants will no longer be required to submit the old format of the South African Police clearance certificate when making an application for a renewal or extension of their visa within South Africa. Applicants are to note that this process will only apply to the RSA police clearance. Where the applicant is required to submit a police clearance from the country of origin the current procedure will remain unchanged.
• South African police clearance will be validated upon biometric enrolment at the VFS center effective as of 01 January 2018 at a fee of R175 (Inclusive of Vat) Per Applicant

Expired passport, valid visa?

2018-02-22 – SA Migration
The issue of a valid SOUTH AFRICAN visa in an expired passport has caused problems for numerous readers over the past year. Although a person can still use a valid visa in an expired passport, the situation is not ideal.
The consultants at SA Migration had to deal with a number of cases where airlines refused persons to board in such situations. We also received a number of queries from distressed employees whose SOUTH AFRICAN employers did not accept the valid visa in the expired passport as proof of their right to work in the SOUTH AFRICAN.
Expired Passport – Dept of Home Affairs Guidance
The official guideline from the Dept of Home Affairs regarding the matter states that a person can still use the valid visa in the expired passport. He/she will, however, have to show the expired passport together with the new passport when travelling.
SOUTH AFRICAN employers can also check a person’s right to work with the Dept of Home Affairs.
Solution for the Expired Passport, Valid Visa Situation
Probably the safest solution is to replace your visa with a Transfer of Visa to New Passport. This transfer can be done if you are in the SOUTH AFRICA.
If you are outside the SOUTH AFRICA and have an expired passport with a valid visa, it is possible to apply to transfer the SOUTH AFRICAN visa to your new passport.
Transfer of Visa
In the light of the doubts about the situation that sometimes arise at airports, and with SOUTH AFRICAN employers, SA Migration Consultants highly recommend that persons with expired passports rather apply for a new passport . This should remove all doubts and ensure peace of mind for the visa holder!
For more information, please visit our website at or fill out the form

New President urges South Africans to focus on tourism in key speech

New President urges South Africans to focus on tourism in key speech
16 Feb 2018 -Tourism Update

Recently sworn in President of South Africa, Cyril Ramaphosa, highlighted the importance of tourism and its potential for growth in his maiden State of the Nation Address (SONA) on Friday (Feb 16).
Growing the tourism sector forms part of the President’s ten-point plan to revive the country’s economy.
He believes that tourism can provide the country with “incredible opportunities”, as the sector currently sustains 700 000 direct jobs and is performing better than most growth sectors.
“This year, we will enhance support for destination marketing in key tourism markets and take further measures to reduce regulatory barriers and develop emerging tourism businesses,” said Ramaphosa.
South African Tourism (SAT) CEO, Sisa Ntshona, commented: “We’re very excited that tourism is being placed front and centre in the national conversations and we’re especially excited that Ramaphosa highlighted this very fact at SONA 2018.”
Vivian McCarthy, Director at Acacia Africa, believes Ramaphosa will strengthen the tourism industry, and will invest more into the sector, increasing tourist arrivals.
Talking about the rand and current political instability during SONA, the President said: “Commodity prices have improved, the stock market has risen, the rand has strengthened and there are early indications that investor confidence is on the rise…We have taken decisive measures to address concerns about political instability and are committed to ensure policy certainty and consistency.”
South Africa is home to some world-renowned parks and reserves, commented McCarthy: “Saying this, South Africa must remember that the travelling public have a choice of where to spend their hard-earned pounds, and so it is imperative that SA’s pricing remains competitive.”
“Under the leadership of Ramaphosa, the country should grow, and this will offset the past, making people want to visit our shores. SA has so much to offer and the change in this long-awaited leadership must prove the beauty and respect we truly have in our country, its people and, in my case, our tourism offering,” said Collin Thaver, Managing Director of Southern Africa 360.
The President called on South Africans to open their homes and their hearts to the world.
“There is a greater sense of optimism among our people. Our people are hopeful about the future,” said the President.
Other points included small business development, the investment conference and infrastructure investment, focusing on the improvement and implementation of new projects for water infrastructure, road maintenance and health facilities

Who is an illegal worker?

An illegal worker is a non-citizen who is working without a valid visa or working in breach of a visa condition. Not everyone who comes to South Africa with a visa has permission to work.
Please access our website to check whether you qualify for a work visa