As calls for the removal of undocumented foreign nationals continue in parts of South Africa, one should remember that not all people who cross the country’s borders are migrants by choice.
Many are refugees or asylum seekers who have fled war, persecution, political violence or other serious threats to their lives and freedoms, and are protected under both international and South African law.
South Africa is a signatory to the 1951 UN Refugee Convention, its 1967 Protocol and the 1969 Organisation of African Unity Refugee Convention. These obligations are incorporated into domestic law through the Refugees Act, which governs who qualifies for protection and what rights they have.
Refugees are not the same as migrants
The United Nations High Commissioner for Refugees (UNHCR) distinguishes between migrants and refugees based largely on why they leave their country.
Migrants vs refugees
Migrants generally move voluntarily. This would often be for employment, education or family reasons, and may safely return home if they choose.
Refugees, however, flee because they face persecution, armed conflict, violence or events seriously disturbing public order. Unlike migrants, returning home may place their lives or freedom at risk.
An asylum seeker is someone who has applied for refugee status but whose claim has not yet been decided.
How asylum works in South Africa
According to the Department of Home Affairs, a person seeking protection must apply for asylum at a Refugee Reception Office.
While their application is being processed, they receive a Section 22 asylum seeker permit, which temporarily legalises their stay in South Africa.
If their application is successful, they receive recognised refugee status under a Section 24 refugee permit.
What rights do asylum seekers have?
Now let’s talk rights. Although asylum seekers are still awaiting a final decision on their claims, they are afforded several important legal protections.
According to UNHCR South Africa, asylum seekers have the right to remain legally in South Africa while their application is being processed; have their permit renewed while their claim, appeal or review is pending; protection against unlawful arrest, detention or deportation; enjoy the constitutional rights available to everyone in South Africa, except rights reserved exclusively for citizens, such as voting.
However, asylum seekers do not automatically have permission to work.
Following amendments to the Refugees Act, they must apply for an endorsement allowing them to work while their asylum application is being considered. Permission is assessed on a case-by-case basis and may include specific conditions.
What additional rights do recognised refugees have?
Once refugee status has been granted, recognised refugees have broader legal protections.
UNHCR says recognised refugees may live lawfully in South Africa; apply for a refugee identity document; apply for a refugee travel document; seek employment; study; access public services, subject to the same legal requirements that apply generally.
Recognised refugees may also apply for permanent residence after meeting the legal requirements set out in the Refugees Act.
The legal protections afforded to refugees and asylum seekers do not exempt them from South African law.
UNHCR states that asylum seekers and refugees must obey the country’s laws, keep their permits valid, notify authorities of changes of address and carry their documentation. Failure to comply may have legal consequences, while refugee status may also be withdrawn under circumstances provided for in law.
Healthcare and constitutional protections
The South African Human Rights Commission has previously stressed that the Constitution protects the right to healthcare for “everyone”, including refugees and asylum seekers.
The commission has said South Africa’s constitutional obligations, together with international refugee law, require public healthcare facilities to provide equitable access to healthcare regardless of nationality or refugee status.
South Africa continues to host one of the largest populations of refugees and asylum seekers in the region, many of whom have fled conflict and instability in countries across Africa. According to UNHCR, these individuals often face challenges including documentation delays, xenophobia and barriers to accessing services.
IOL
