Rights of asylum seekers compromised
SOUTH Africa is often lauded for having one of the most progressive Constitutions in the world as well as laws regulating refugees and asylum seekers, so much so that people sometimes assume that asylum seekers enjoy the fundamental constitutional rights entrenched in the Bill of Rights. Such an assumption is, however, erroneously based on the notion that certain rights in the Bill of Rights apply to everyone.
What the word ‘everyone’ entails constitutionally was dealt with in the 2004 case of Khosa v Minister of Social Development, where Judge Sandile Ngcobo indicated that it is “a term of general import, with unrestricted meaning, which means what it conveys”.
This is, however, subject to limitations in terms of section 36 of the Constitution. Such limitations can be exercised only in terms of law of general application, to the extent that they are reasonable and justifiable.
This implies that the exclusion of asylum seekers from rights entitlement must reasonably be justified in terms of section 36. Generally, the exclusion of non-citizens from equal entitlement of rights is justified on and supported by the international norm that, “every sovereign nation has the power to admit foreigners only in such cases and under such conditions as it may see fit to prescribe”. In line with this norm, accrual of rights to non-citizens must be determined by Parliament through legislation.
Two main pieces of legislation regulate the stay of non-citizens in South Africa, namely the Immigration Act of 2002 and the Refugees Act of 1998.
The Immigration Act, which is the principal law, requires that foreign nationals be admitted in the country on condition that they are self-reliant. This implies that their socio-economic needs cannot be the responsibility of the South African government. To guard against such responsibility, the act mandates authorities to expel or deport those who are likely to become dependent on the government.
The principle of self-sufficiency does not apply to asylum-seekers, simply because they are admitted in the country on humanitarian grounds. They are in the greatest need of a safe haven as well as humanitarian relief, and assistance such as food, water, clothes, shelter and medical care. Whereas the Immigration Act exempts them from the condition of self-sufficiency, the Refugees Act is silent on the question of whether they should receive humanitarian relief and assistance.
When the Refugees Act was adopted in 1998, it accorded socio-economic rights to those asylum seekers who are formally recognised as “refugees”. Asylum seekers had to wait until they were formally recognised as “genuine” refugees.
Owing to delays in the administrative process of adjudicating their applications, the Supreme Court of Appeal in the 2004 case of Minister of Home Affairs v Watchenuka intervened and ruled that, based on the right to human dignity, a general exclusion from, for example, the right to education and employment violates the dignity of asylum seekers. Excluding them from socio-economic programmes – without offering them humanitarian assistance – endangers their life.
In 2008, Parliament tried to rectify this legal position by adding a provision in the Refugees Act which stated that, “an asylum seeker is entitled to the rights in the Constitution of the Republic of South Africa, 1996, insofar as those rights apply to an asylum seeker”.
Firstly, this tautologous provision (asylum seekers are entitled to the rights which apply to them) did not, however, rectify the legal position of asylum seekers with respect to their access to socio-economic rights, because there are no rights in the Bill of Rights that specifically apply to asylum seekers to the exclusion of others. Secondly, it is unclear how the application of the entitlement of socio-economic rights to asylum seekers by virtue of the Constitution differs from that provision applicable to refugees.
The Refugees Act states that, “(a) refugee enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution of the Republic of South Africa, 1996, except those rights that only apply to citizens”. The key question is: if entitlement of socio-economic rights to asylum seekers is not subject to full legal protection, to what extent are asylum seekers entitled to socio-economic rights? For example, if refugees must enjoy full legal protection of the right to have access to health-care services, what could be the position of an asylum seeker?
Entitlement of socio-economic rights of asylum seekers is particularly problematised by the fact that the Refugees Act is not recognised by, or harmonised with socio-economic legislation or policies. This exacerbates asylum seekers’ destitution, anxiety, trauma and uncertainties about their future.
It is crucial to note that the 2008 revision only came into effect on January 1, 2020, which means that for quite a long time asylum seekers could not invoke the aforementioned provision to claim any socio-economic rights.
They would have expected their circumstances to change, but this didn’t happen because when the revision came into effect, it was in conflict with the spirit of the White Paper on International Migration of 2017 as well as the revision of the Refugees Act of 2017. Both the White Paper and the Refugees Amendment Act of 2017 provide that asylum seekers should be confined at Asylum Processing Centres and that their socio-economic needs should be addressed by the United Nations High Commissioner for Refugees and other charity organisations.
Further discrepancies are found in the Regulations to the Refugees Act of 2018, which vests the power in the Standing Committee for Refugee Affairs (SCRA) to determine the conditions on or extent to which asylum seekers can enjoy constitutional rights.
The 2018 Regulations also require asylum seekers to apply to the SCRA if they want to undertake education or employment. The SCRA must also, from time to time, publish in the Government Gazette the list of sectors in which asylum seekers may not work or study. The fact that these people have to apply to enjoy a right clearly shows that they are not allowed to claim the same socio-economic rights as formally recognised refugees do.
The state uses affirmative action and black economic empowerment measures as an excuse to exclude asylum seekers (and in certain circumstances, refugees). We’re all pretty much in agreement that these measures are needed to redress past injustices.
Unfortunately, this prioritisation has led to political campaigns to prevent asylum seekers from accessing socio-economic rights by classifying them as “economic migrants”, and viewing them as people who don’t seek humanitarian protection, but rather new opportunities. These campaigns against asylum seekers do not stop at exclusion, but call for their arrest and expulsion. Hence, they are undesirable people who should not be the responsibility of the government.
South Africa’s fatigue to host asylum seekers should therefore not come as a surprise. We see this fatigue in the closing of refugee reception offices in major cities, disobeying court orders to reopen them, and adopting new stringent immigration and refugee measures aimed at closing borders, and excluding them from qualifying for refugee protection.
The issues highlighted in this article prevent asylum seekers from receiving humanitarian assistance, and having proper access to socio-economic rights. Therefore, it cannot be said that they enjoy the rights in the Bill of Rights and the protection that goes with it.
We should continue to call attention to their plight and emphasise the need to expedite their applications, which is the only key to have access or entitlement to the rights in the Bill of Rights that apply to everyone.