​​Refugees and asylum-seekers in South Africa don't often find the better life they were searching for. They struggle to get access to social welfare, health care and housing because current legislation isn't clear on what socio-economic rights they should enjoy.

This is one of the main findings of a recent doctoral study at Stellenbosch University (SU).

“Although the Refugees Act extends to refugees and asylum-seekers the right to have access to subsidised socio-economic goods and services, they are in practice, excluded from certain socio-economic rights," says Dr Callixte Kavuro who lectures in the Department of Public Law and Jurisprudence at the University of Western Cape. He recently obtained his doctorate in Public Law at SU.

Kavuro's study dealt with the question whether and to what extent refugees and asylum-seekers are entitled to socio-economic rights and benefits in view of the constitutional values of human dignity and equality and the standards of same treatment and more favourable treatment in the 1951 UN Convention Relating to the Status of Refugees (the 1951 Refugee Convention), which is a cornerstone of international obligations on countries to protect refugees and asylum-seekers.

In his study, Kavuro focused on access to three socio-economic rights namely the right to public relief and assistance, the right to healthcare and the right to adequate housing.

After having reviewed academic literature on refugee rights regarding access to socio-economic rights and the concepts of dignity and equality, he did a detailed analysis of the extent to which refugees and asylum-seekers are given these rights, or are excluded from their protection in the Refugees Act, 1998 (Act 130 of 1998), as well as the Social Assistance Act, 2004 (Act 13 of 2004), the National Health Act, 2003 (Act 61 of 2003) and the Housing Act, 1997 (Act 107 of 1997). He also did a comparative analysis of the constitutional and legislative frameworks governing refugees' access to socio-economic rights in the United States (US), South Africa and France. 

Kavuro says the South African government is often ambivalent in its protection of refugees and asylum-seekers in the country.

“Authorities – especially political heads of departments – argue that the country's resources should be distributed solely to improve the quality of life of citizens, especially the historically disadvantaged, and not the standards of living of refugees and asylum-seekers."

“State officials tend to treat refugees and asylum-seekers as ordinary immigrants who are temporary residents in South Africa and who should be excluded from social welfare.

“This is, however, contrary to South Africa's new-found commitment to protect all people who live in the country, as expressed in the preamble of the Constitution, as well as refugees and asylum-seekers, as expressed in the Refugees Act. This implies that the dignity of refugees and asylum-seekers must be protected." 

Limitations

Highlighting some of the limitations of the Refugees Act, Kavuro says his analysis showed that the Act and its Regulations are unclear about which socio-economic rights refugees and asylum-seekers should enjoy.

“The Act provides that refugees are entitled to all rights in the Bill of Rights, except those rights that are expressly reserved for citizens. However, it distances itself from the guiding standards of favourable treatment, envisaged by the 1951 UN Refugee Convention and the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (the 1969 African Refugee Convention).

“The Refugees Act is not sufficiently harmonised with legislation governing the distribution of socio-economic rights and benefits and the legal protection of refugees and asylum-seekers. Consequently, refugee rights are not decentralised in such a way that they can be accessed by or availed to these people at local levels.

“The Act isn't clear how refugees and asylum-seekers will be integrated in South Africa if the Act takes self-integration and self-settlement approaches. This implies that South Africa has no obligation to offer support and humanitarian assistance to new or vulnerable refugees and asylum-seekers."

Kavuro adds that the Refugees Act doesn't expressly cover the right to public relief and assistance and the right to health.

He says while the Act does impose obligations on the state in relation to the right to housing of refugees and asylum-seekers, the Housing Act excludes them from access to housing and other related rights. This stems from the definition of housing development in the Act, which restricts access to adequate housing to citizens and permanent residents.

“Although it recognises the housing needs of the poor, the marginalised and disadvantaged, the Housing Act does not define these concepts to determine whether they include refugees and asylum-seekers."

Regarding the National Health Act, Kavuro says it doesn't refer to refugees and asylum-seekers in unequivocal terms as vulnerable groups. There are, however, certain policies that recognise refugees and asylum-seekers as vulnerable individuals entitled to certain healthcare services, he adds.

Kavuro says refugees and asylum-seekers are excluded because they are treated as temporary residents in terms of the Immigration Act, 2002 (Act 13 of 2002).

Amendment

He points out that although asylum-seekers are not mentioned in international refugee conventions, his study found that asylum-seekers are also refugees lawfully staying in the country and are entitled to all rights that the 1951 UN Refugee Convention affords such refugees. These include, for example, the right to wage-earning employment, the right to liberal professions (e.g. lawyers, notaries, teachers, engineers, architects, doctors, dentists, nurses, pharmacists, accountants, etc.), the right to housing, the right to public relief and assistance, the right to social security and to labour rights.

“Asylum-seekers are entitled to have access to certain aspects of social welfare as contemplated by the 1951 UN Refugee Convention, the 1969 African Refugee Convention and the Refugees Act. The fact that they don't enjoy the same measure of protection as refugees, as they are not granted full legal protection in terms of the Refugees Act, further contributes to their vulnerability."

Kavuro says refugees in France and the US are better off than those in South Africa because both countries adopted measures that give effect to refugee rights.

“In South Africa, no measures have been taken to provide guidance on how refugees or asylum-seekers can be integrated into existing social welfare schemes."

He calls for the amendment of relevant clauses in the Social Assistance Act, the National Health Act and the Housing Act, saying they should be aligned with the Refugees Act to afford refugees and asylum-seekers access to social welfare and housing, as well as free healthcare services.

Kavuro says he plans to submit his findings to relevant role players in government and civil society organisations.

• Main photo: A refugee mother and child. Credit: Wikipedia
• Photo 1: Dr Callixte Kavuro

FOR MEDIA ENQUIRIES ONLY

Dr Callixte Kavuro

Department of Public Law and Jurisprudence

University of the Western Cape

Tel: 021 959 2171

Cell: 083 963 7345

Email: callixtekav@gmail.com