The recent extension of both the Zimbabwe Extension Permit (ZEP) as well as the Lesotho Extension Permit (LEP) has spiked interest around foreign workers who are allowed to work in South Africa without the needed documentation.
Who can lawfully work without navigating traditional mainstream work visa processes:
1. Recognised Refugees (Section 24 Status):
Individuals who complete the refugee process successfully and have been formally recognised as refugees by the Department of Home Affairs are granted a Section 24 under the Refugees Act. These refugees can enjoy automatic rights to seek employment, enter employment contracts and to operate businesses in South Africa. These rights do not require a separate work visa.
2. ZEP Holders:
Provides Zimbabwean Nationals with the temporary status which makes it able for them to find work, to study and manage businesses in South Africa. The department of Home Affairs confirmed that permits remain validly recognised until 29 May 2027 whilst consultations for future programmes continue. This extension does not work for an asylum seeker. These are separate terms which has no functional overlap. The ZEP/ZEB was created by the Department of Home Affairs to specifically provide foreign nationals with temporary legal status for work, studies and business. Valid permits have been extended until 29 May 2027 whereas Asylum Seekers applies to individuals who fled their home country for reasons that include fear, persecution or searching for protection. They are issued Section 22 permits which follows a whole different application and renewal process. Because they operate under different laws, the holder cannot automatically transition to or hold an asylum seeker permit unless the individual meets the legal criteria for refugee status.
3. LEP Holders:
Functions in a similar way of ZEP and gives Lesotho citizens permission to find work, to study and to manage businesses in South Africa and is also extended up until 29 May 2027.
4. Spouses and Life Partners:
If foreign nationals can provide proof of the marriage or long-term life partner, the South African citizen or permanent resident may apply for authorisation regarding an endorsement that will be connected to their immigration status. Although there is no traditional work visa, the appropriate authorisation must still be received from the Department of Home Affairs before the commencement of employment.
5. All other Foreign Nationals:
Anyone outside of these specific groups must possess valid work visas that include; Critical Skills Visa, General Work Visa or even an Intra-Company Transfer Visa to be employed lawfully. If employers do not ensure the individual has these valid documentations, they will be violating the Immigration Act.
Permanent residents
Foreign nationals who have been granted permanent residence in South Africa have the rights to enjoy many of the same economic and labour rights as South African citizens, which includes the right to work without having to maintain a separate work visa.
Employer Compliance Remains Essential
Employers remain responsible in ensuring that employed foreign nationals have the valid documentation which authorises employment in South Africa. If individuals do not have the valid documentation for employment, they must apply for the appropriate work visa or permit before being employed. Penalties may be given to employers who do not verify the valid and appropriate documentation of individuals before employing the individual under South African Immigration Laws.
Rules regarding “proof of application” regarding asylum seekers:
For Mainstream Work Visas (Applied via VFS), you can only legally continue working if you applied for the renewal before the original visa expired. The Department of Home Affairs has a “status quo” principle regarding DHA Immigration Concessions which recur. If the renewal application is submitted to VFS Global on time, the VFS receipt acts as legal extension of existing visa conditions while waiting for outcome. The catch on the other hand is that you cannot change the conditions. If the expired visa was a work visa, you can continue working for only that specific employer under the same conditions. If it expired before application, VFS receipt will not provide protection and if an employer employs the individual under those circumstances, it is considered a violation of the Immigration Act.
Asylum seekers (Section 22 permits), a basic proof of a pending application or a submitted email does not give the individual clearance to work. The system for these individuals is strict with regulations and differ from VFS visas. The Online Extension Loophole includes that there is an automated email confirmation that is sent to the individual when submitting online renewals of DHA Asylum Platform. Although this keeps immigration authorities from arresting the individuals, it is not a valid working permit. For an Asylum Seeker to be able to work, they need to have the physical Section 22 permit must be explicitly endorsed by the Standing Committee. The risk is that if the permit has expired, the individual’s right to work completely lapses until a renewal is issued by the Refugee Reception Office. Legal risk for both employer and employee can come forth if individual keeps on working without a renewal.
Conclusion
The extension of the ZEP and LEP programmes does not change the framework of immigration in South Africa. Employers must verify that individuals have valid documentation like exemption permits, refugee status, permanent residence, spousal endorsements or work visas before authorising employment of the individual.
FEOSA can assist in confirming if your business is compliant help guide you through the processes if it is found that your business id not compliant, making it easier to integrate and respond to these situations before facing the repercussions.
References:
https://help.unhcr.org/southafrica/get-help/documentation/asylum-seeker/
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