Estates warned not to act as immigration police

Residential estates that try to keep suspected illegal foreign workers out could run into legal trouble.

Home owners’ associations (HOA) and bodies corporate are warned they are not immigration police and cannot decide who is legally entitled to be in SA.

Estates can enforce access but not immigration law

Attorney Johlene Wasserman said estates may enforce security and access rules, but must apply them consistently rather than single out domestic workers or foreign nationals.

The legal responsibility for employing an undocumented worker generally rests with the employer.

“If the owner employs the domestic worker, the exposure sits with the owner,” she said.

Wasserman said an estate may require identification, passports or permits as part of an access-control system, but the legal line is crossed when trustees or security guards begin deciding what those documents mean or whether someone has a legal right to work in the country.

“The line sits where the estate stops recording what is presented to it and starts adjudicating what that document means,” she said.

Where the legal line is crossed

An expired or fraudulent document could justify refusing access because the document cannot be relied upon for security purposes.

But deciding whether a permit allows its holder to perform specific work, checking immigration status against databases or maintaining a list of people classified by an estate as illegal would stray into functions reserved for the state.

Wasserman said the Immigration Act prohibits employers from employing illegal foreigners, or people whose immigration status does not authorise their employment.

Employers are also required to make a good-faith effort to establish whether foreign employees are entitled to work.

Employers carry the main legal responsibility

A first conviction can carry a fine or imprisonment of up to a year, increasing to two years for a second conviction and as much as three years for subsequent convictions.

Wasserman said estates should be careful not to confuse an employer’s obligations with their own powers.

Where an HOA employs a worker, or engages a contractor to perform work for the scheme, its exposure is different.

Wasserman said the HOA must establish that people it employs are legally entitled to work and should require contractors and managing agents to warrant that their staff are lawfully employed.

HOAs face different obligations as employers

The position becomes more complicated, she said, when an estate knows a worker may be undocumented.

She said Section 42 of the Immigration Act prohibits aiding, abetting or assisting an illegal foreigner.

An estate that knowingly issues staff credentials or takes steps to facilitate an undocumented person’s work could therefore create legal risk.

Wasserman said accents, appearance or assumptions about nationality cannot constitute reasonable grounds to target someone.

“Immigration status is determined by home affairs, not by a security guard or trustee,” she said.

Suspected document fraud should be reported to the South African Police Service, while immigration concerns can be referred to home affairs.