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Employer's Consequences of Employing Illegal Migrant Workers


The Immigration Act No. 13 of 2002 governs the process of admission, residence and departure of foreigners into South Africa. furthermore, it also provides for the consequences for illegal entry of foreigners into the country as well as the consequences of employers hiring same. 

 We have compiled a summary of the consequences which may affect your company directly or indirectly:


The indirect consequences of employing an illegal foreigner include the following:
  • Any illegal foreigner will be deported.
  • Any illegal foreigner that enters, remain in or departs from the country will be guilty of an offence for which he/she may be fined or imprisoned for a period up to 2 years.
  • Your work premises are subject to inspection by an immigration officer in order to search for illegal foreigners (with and without a warrant).
  • Upon such inspection, the officer may apprehend the worker.
  • The officer may use force that is reasonably necessary to overcome resistance to such entry or search.
  • An officer may arrest the foreigner, without warrant, and thereafter deport or detain such person for deportation.
  • A person who does not comply with an order for deportation will be guilty of an offence and thus liable for a fine up to R20 000.00 or to imprisonment not exceeding 12 months.
The Act specifically includes a section which sets out the duties and obligations of employers which include the following:

  • The Act unequivocally states that “no person shall employ an illegal foreigner”.
  • It is a legal requirement for an employer to make an effort in good faith to determine that he/she does not employ and illegal foreigner and thus to further determine the status or citizenship of employees.
  • Kindly note that stricter compliance of the Act is required if an employer employs more than 5 employees or has been found guilty of a prior offence under this Act.
  • You are meant to keep records of such employee and his employment for two years after termination.
  • You may be held guilty of an offence if you are found to have knowingly employed such a person and will be liable to a fine or imprisoned for a period up to 1 year.
    • A second conviction may lead to imprisonment of a period up to 2 years.
    • A third or subsequent conviction could lead to imprisonment of a period up to 5 years without option of paying a fine. 

With regard to the direct consequences of an employer employing an illegal foreigner,if it is evident that you employed an illegal foreigner, it will be presumed that you knew that he/she was an illegal foreigner at the time of employment. 

 The presumption will fail if you can prove that you employed such person in good faith. Furthermore, if a foreigner is found on any premises where business is conducted, it will be presumed that a foreigner was employed by the person who has control over such premises.

If you fail to comply with any of the duties of employers as set out in this Act, you will be guilty of an offence and liable to a fine or imprisonment for a period up to 5 years.

The Minister of Home Affairs announced that government would be increasing efforts to investigate and raid companies employing foreign nationals without the correct documents.

If you require more information, or feel you may be need legal advice regarding your employees, feel free to contact us with your inquiries.

Prepared by Daniella Kukard

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