What private security employers must know before hiring an illegal immigrant

The private security industry is pervasively regulated by its compliance universe that spans from firearms regulations to labour regulations, through to general legislation pertaining to PSIRA.

A number of security service providers have inadvertently added the Immigration Act 13 of 2002 to this compliance universe by appointing illegal immigrants.

Most security service providers do not approach the provisions of the Immigration Act with the importance that it deserves

The rationale for appointing undocumented immigrants appears to be the fact that undocumented persons will work longer hours, be more susceptible to exploitive actions, and very seldom approach the CCMA or the Bargaining Council with complaints.

Over and above the fact that immigrants, or undocumented persons, may not be properly registered at PSIRA – it is also illegal to employ such persons in terms of Section 38 of the Immigration Act.

• • The Immigration Act places a burden on the employer to make a group faith effort to ascertain it does not employ illegal foreigners.

• • To make matters worse, subsection 5 of Section 38 creates a presumption that when a foreigner is found on the business premises, such a person to be deemed to be employed by the owner of such premises unless prima facie evidence to the contrary is adduced.

Employers are on the hook

The stipulations of the Immigration Act go even further, to the extent that any way whatsoever that an illegal immigrant was employed is in violation of the provisions of the Immigration Act.

The employer shall be presumed to have known that such a person is an illegal immigrant –

• • unless the employer produces that he employed such a person in good faith

• • or that he appointed such a person in good faith after complying with his obligations to ascertain that such a person was not an illegal foreigner.

What can happen when you employ an illegal immigrant

Employing illegal immigrants comes at great risk to any employer.

One such risk is that an immigration officer or police officer when having reasonable grounds to believe that such a person may not be entitled to be in the Republic, interview the suspected immigrant. They may then take that person into custody without a warrant.

A criminal offence for employers

Any employer entering into an agreement that enables an undocumented foreigner to carry on any business, profession or occupation, and/or providing instruction, or provide training to such a person, would be guilty of a criminal offence.

It should be noted that the employer will not be entitled to call upon a defence that adverse that it was unknown to him or her that the employee was in fact an illegal foreigner if they ought to have reasonably known the status of a foreigner.

A transgressor of these provisions may be convicted to a fine or imprisonment not exceeding –

• • 1 year for a first offence

• • 2 years for a second offence

• • more than 5 years on the 3rd or subsequent conflictions

Employers may further be subject to certain administrative penalties under the circumstances (the provisions fall outside the purview of this article).

The Immigration Act further provides that any person who contravenes or further complies with any provision of the Immigration Act will be guilty of an offence and liable to a fine or imprisonment not exceeding 7 years in respect of matters not mentioned elsewhere.

Do due diligence, and then do it again

Private security service providers should therefore under all circumstances perform adequate, if not more than honours, due diligence in respect of new appointees to prevent the above presumptions from being applied to their security firms and resultantly prevent criminal actions being instituted against them.

When an immigration officer enters, what can they do?

The minister may appoint members to the inspectorates to exercise the functions including investigations into matters pertaining to the Immigration Act. The functions and authority of such business are prescribed by the minister, and they shall be responsible to investigate any matter falling in the scope of the Immigration Act.

Immigration officers may –

1. 1. At any time, before the commencement or during the course of the investigation, conduct an inspection in loco on the premises on any person.

1. 1. May, by written notice, call upon any person who is in possession, or has a in his custody or control, anything which the Director General is of the opinion may be relevant to an investigation to produce such a “thing”. (The Director General may inspect and ascertain the above “thing” as was called upon to deliver to him.)

1. 1. An immigration officer is entitled to obtain a warrant to enter or search any premises. They may examine anything found on the premises, and request (from the person that is in control of the premises) explanations and/or information.

1. 1. Make copies or abstracts of objects or documents found the premises.

1. 1. Immigration officers may, against the issue of a receipt in respect thereof, seize or remove documentation or anything that is concerned with (or is on reasonable ground suspected of being concerned with) anything that is a subject of an investigation or contains information to any such matter.

1. 1. The powers of such an inspector also include that they may enter any premises (excluding private dwellings) without a warrant under circumstances where they believe that a warrant will be issued to them and that any delays in obtaining such a warrant would defeat the object of the entry.

1. 1. Immigration inspectors may use such force that may be reasonably necessary to overcome resistance to such entry or search.

From this discussion, it becomes clear that the appointment of illegal immigrants or undocumented persons in the private security industry is a large liability to any employer in the sector. Immigration officers wield power and the contravention of the Immigration Act leads to serious consequences and places the survival of an enterprise at risk.

 

Baartman & Du Plessis Attorneys are specialists in Private Security Sector compliance and legislation. Contact our office for your Private Security Sector legal needs.