SOUTH Africa's immigration law is about to get a whole lot tougher as the home affairs department decides to slap prison terms on employers of undocumented migrants.

According to home affairs minister Malusi Gigaba's spokesman Mayihlome Tshwete, this latest step will apply to all offenders, be they the head of a domestic household or the owner of a business.

"The offence does not change because of the profile of the perpetrator of the crime. And we must remember that it is a crime to flout our immigration laws," Tshwete says.

"We will prosecute anyone who breaks the law. An offence of this kind can carry up to two months behind bars," he adds.

The move comes hot on the heels of a wave of xenophobic attacks across Gauteng, though Tshwete is adamant the two are unrelated.

"We have been discussing this idea of criminalising offending employers for some time now," he says. "We are not introducing anything new and this is not an amendment. We are simply applying the law."

That ought to be a chilling warning to the millions of homes across the country that illegally employ foreigners as gardeners, domestic workers or nannies, as well as to companies that employ undocumented labourers, often for a lot less than they would pay their SA counterparts.

The move comes almost a year after home affairs overhauled its immigration requirements when it introduced legislative amendments to the 2002 Immigration Act, making it infinitely more difficult for foreigners to enter SA as tourists, students or would-be unskilled workers or to remain here as permanent residents.

Though government came in for some harsh criticism at the time, which was in part warranted, (not least in relation to the negative impact it is expected to have on tourism figures), the amendments were an earnest attempt to drag existing immigration laws kicking and screaming into the 21st century and seal the country's famously porous borders.

Countries all over the world were making similar moves in parallel, and though SA doesn't have too many enemies, if it had ever found itself under attack, the old regulations would have provided ample fodder for critics.

However, the main concern here was not one of homeland security, but the constant influx of unskilled labour crowding out an already crowded job market.

As it stands, no-one knows how many undocumented foreigners are resident here. A few years back it was assumed there were 3m or so Zimbabweans living in SA, yet when government introduced special work permits for them in 2009, only 300 000 applicants came forward, of whom 250 000 were successful. When that cohort was forced to reapply last year, only 207 000 of them did so. However, as Tshwete points out, it would be wrong to assume the remaining 40 000 are now working illegally as some have returned home, while others have changed their status and become holders of different visas.

Still, the problem does not rest with a few thousand Zimbabweans as SA is a magnet for economic refugees from tens of countries across the continent and elsewhere. Look over any wooden fence and there is likely to be a Malawian gardener looking back at you, or probe the private security or construction industries, which are often heavy on Zimbabwean recruits.

Whatever the illegal foreign workforce figure might be, it is safe to say it is propping up a growing black economy that is of minimal benefit to the public purse.

This latest move — to nail the employers of illegal workers — is a further alignment of the law with immigration practices around the world. It is notoriously difficult to find work in the US, Germany or the UK without a permit, as employers are fearful of the economic penalties they will suffer as a result. Though SA's 2002 immigration act also has a similar clause, by making the employer liable for the deportation costs of the illegal worker, as well as his or her family, it has been unashamedly overlooked by millions of employers for years. Policing of the act has also been shockingly poor.

How home affairs plans to step up its policing remains to be seen. Tshwete says it will be a joint effort between themselves and the SA Police Service. Even then, the problem is so widespread it will be difficult to turn the situation around.


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