The progressive realisation of human rights of foreign nationals in South Africa

Abstract 

This article seeks to demonstrate the importance of the role that human dignity has played in the development of legal protection for foreign nationals in South Africa and internationally. The interpretation of the rights enshrined in the South African Bill of Rights and the variety of laws and policies implemented are greatly influenced by human dignity both as a value and a right. The article illustrates how the refugee/immigration regime of South Africa, whose primary goal is to guarantee that foreign nationals are granted access to their constitutional rights, has improved in respect of human dignity even though there are still gaps and challenges in fully protecting dignity. Ensuring that refugees, asylum-seekers, and immigrants receive treatment that complies with international and constitutional standards of dignity. This article will further illustrate how the loopholes can be filled to ensure the full progressive realisation of the human rights for foreign nationals.

Keywords: refugees, asylum seekers, legal and illegal immigrants, human rights, dignity.

INTRODUCTION

Human rights realities faced by refugees, asylum seekers, legal and illegal immigrants seem to be different from the values enshrined in the Constitution of the Republic of South Africa. Despite the protection on the Constitution, International Law, Treaties, and other sources of law, the foreign nationals face severe violation of their rights including dignity. Many live in poverty, exposed to exploitation, and neglect from government institutions. Immigrants without documentation faces harsh treatment from government officials which includes living in unsanitary overcrowded spaces which proves to be injurious to health. In this legal article I will illustrate how the human rights of the foreign nationals in the Constitution can be progressively realised. How the undocumented foreign nationals affect the documented, refugees and asylum seekers in exercising their rights fully.

Rights and Legal Protections of Refugees and Asylum Seekers in South Africa

Section 1 of the Refugees Act 130 of 1998 provides that a refugee is any person who have been granted asylum in terms of this Act, and an asylum seeker is a person who is seeking refuge in the Republic. The Acts regulates and ensures that foreign nationals seeking to migrate to South Africa do not get to be unfairly denied the approval of migration and upon approval they do not get maltreatment in the Republic, either by the state or the people of the Republic. Section 3 of this Act provides for factors qualifying an individual to be a refugee, which includes, owing to a well-founded fear of persecution due to unfair discrimination of race, religion, nationality, colour, political opinion, etc, and owing to events disrupting public order, or is a dependent of a person contemplated in paragraph (a) or (b) of the Act.  It also regulates asylum seekers’ application in section 21 of the Act, as amended by section 13 of Act 33 of 2008. When it comes to a foreign national having failed to file an application for an asylum permit the case of Ruta v Minister of Home Affairs (2018) CCT02/18, [2018] ZACC 52 held that,” persons who have not applied for asylum since their arrival in South Africa must be allowed an opportunity to go the nearest Refugee Reception Office to obtain an Asylum Seeker Permit and that they may not be punished for not having one”. This case illustrates the protection foreign nationals are afforded in South Africa, the court held that the delay for an asylum application does not take away that the public officials have a duty to uphold constitutional values of protecting human dignity, life, and security of persons, which includes the foreign nationals.

As the Refugee Act governs the legal framework of the refugees and asylum seekers, it must do so in compliance with the values of the Constitution as section 2 of the Constitution provides that the “Constitution is the supreme law of the Republic and any law inconsistence with it is invalid”. The Constitution imposes obligations on citizens and the state to promote, protect, respect, and fulfil the rights in the Bill of Rights. Callixte Kavuro outlined that, “the cosmopolitan terms imply that refugees and asylum-seekers are entitled to all fundamental rights and freedoms, save for those rights the Constitution ascribes to citizens. The positive terms imply that South Africa should act positively to ensure that (a) their needs are met; (b) they have adequate resources; and (c) they are afforded opportunities to advance themselves. People cannot have their dignity respected by the state if they are not afforded socio-economic rights and benefits, whose access is a key to the development of a society in which every individual can pursue his or her dream for the fulfilment of his or her potential.” this further show that refugees and asylum seekers are catered for in terms of the law in South Africa.

Section 39(1)(b) of the Constitution provides that “when interpreting the Bill of Rights, a court, tribunal, or forum must consider international law”. This provision illustrates that when law enforcement officers enforce the law, they must prefer the interpretation that does not go against international law. Also, in the case of S v Makwanyane (CCT 3/94) [1995] ZACC 3 (6 June 1995) it was held that public international law would include binding and non-binding law and may be both used as a tool for interpretation. Section 6(a) of the Refugees Act provides that the Act must be interpreted and applied with due regards to the Convention Relating to the Status of Refugees (UN, 1951). As much as foreign nationals are afforded rights and legal protection in the states, there are also subject to obligations. Article 2 of the Convention Relating to the Status of Refugees (UN), provides that “refugees have duties to ensure public order in the state they reside, and they ensure that they follow every law and order of the state”. They must ensure that they do not go against the laws of the country which is something most foreign nationals fails to do as they often find themselves in trouble with the law under different circumstances.

As this was seen in the Case of Ruta v Minister of Home Affairs ZACC, where a Rwandan national was in South Africa illegally and was arrested due to violation of the traffic rules, he was sent to prison. Because Mr. Ruta was a foreign national, the Department of Home Affairs wanted to deport him, and he argued that he would apply for an asylum permit since in his country he would be killed if he returned. The court held that the department must ensure that Mr. Ruta is assisted in his request for a permit because a delay in applying for a permit does not disqualify one to have one. This case illustrates how even when foreign national break some of the law of the country, but they are still entitled to the one that favours them, they do not get disqualified just because they went against the law of the country.

With certain loopholes in the law of the Republic, the refugees and asylum seekers are well protected by various law in the country, which includes among others, the Constitution, Refugee Act, and International Law(treaties).

Legal Challenges and Human Rights Risks Faced by Undocumented and Illegal Immigrants

Undocumented and illegal immigrants are often known as illegal foreigners which in terms of the Immigration Act 13 of 2002, an illegal foreigner is described as a “foreigner who is in the Republic in contravention of this Act and includes a prohibited person.” This means that this particular person is not recognised as per the systems of the country and is prohibited from being in the country, was not supposed to be in it in the first place. Although foreign nationals are protected under the law in South Africa and other countries there is still a loophole to that protection. Illegal and undocumented immigrants (illegal foreigners) face harsh conditions and ill treatment from the state and its people. Section 34 of the Immigration Act provides that “without a warrant an immigration officer may arrest an illegal foreigner, deport him or cause him to be deported, upon waiting for deportation, may detain him under the grounds that, he will be notified and given the chance to appeal as per his right, may ask for a warrant of court, if not provided he shall be released in 48hours. May not be held in detention for longer than 30 calendar days. Shall be held in detention in compliance with the minimum prescribed standards protecting his or her dignity and relevant human right.” State officials fail to follow these requirements set out by the immigration Act as they often detain illegal foreigners without following the set laws/rules.

This was also seen in the case of Abore v Minister of Home Affairs CCT 115/21 where Mr Abore who is an illegal foreigner had fled from his country, Ethiopia, owing a fear of persecution, and entered South Africa illegally from Zimbabwe. He was later arrested and imprisoned for 50 days with an option to pay a fine of R1500. Mr Abore provided proof of that he did pay the fine but was not released and kept in detention which was against the law. This proves how much illegal foreigners’ rights are not considered in the Republic and this leads to them being disadvantaged. As much as illegal foreigners are entitled to their rights which goes hand in hand with the right to dignity and the rights afforded to everyone in the Constitution, their need to always run from run from the state officials due to their circumstances does not make things easier for neither them or the state and its people.

Illegal immigrants often face unfair discrimination, xenophobic attacks which in a way prevent them having stable jobs, taking their children to schools (which will be discussed in a separate subtopic), and having housing in stable and secure areas. As the people of the Republic are not familiar with law and there are limited policies on foreign nationals, this causes frustration on the citizens.

The Impact of Illegal Immigrants on the Legal Status and Rights of Legal Immigrants

Illegal foreigners often cause bad blood between documented foreigners and the people of the Republic, because even when documented foreigners are in the country legally, they are still bind together by the word foreigner, which negatively affect the rights of the documented foreign nationals. It is said that illegal foreigners undermine the economic growth of the Republic as they are not in the systems and they do not contribute towards building the economy status. This was mentioned by Reginald Legoabe & Mothepane Seolonyan, they held that “Illegal immigration undermines endogenous economic development and holds implicit and explicit dangers and risks to the economic development and security of any Republic on the African continent and the world.” Which goes into tarnishing the name of foreign nationals, making them face difficulties in the Republic.

Pelser mentions, “the presence of illegal immigrants has strong negative effects on the South African economy in respect of aspects such as employment opportunities, health, education and housing. Politicians, trade unions and the public at large are increasingly strident in blaming immigrants for undercutting prices, grabbing low-paid jobs and scarce housing and adding to the crime rate. Little wonder that the presence of illegal immigrants is now being linked to either the success or failure of the government’s Reconstruction and Development Plan.” This factor brings frustration to South Africans as this make it seem like all foreign nationals are taking their jobs at lower rates. Illegal foreign nationals also settle in the squatter camps resulting in them using the resources that they do not pay but is paid for by the citizens, this includes electricity, water, and health services.

“South Africa has experienced an escalating tide of xenophobia against foreigners in general and illegal immigrants in particular. Studies undertaken by the HSRC in October 1994 indicated that 56% of South Africans believed that the government should act more severely against illegal aliens. By February 1995 this figure has increased to 72% (Solomon 1995:12). This xenophobia is manifested in various ways. In the metropolitan areas of Johannesburg, Durban and Cape Town, for instance, foreign hawkers have been verbally abused, physically assaulted and their property damaged or destroyed. This hostility is rooted in a perception among many South Africans that the presence of foreigners will prevent the needs of local people to be met. The general sentiment is one that echoes the proverb ‘charity begins at home’ South Africans need to address their own country’s problems of housing, health care and education before they can look at helping foreigners. Clearly the reigning perception is that illegal immigrants place a strain on the country’s limited resources, which apparently are now being used to shelter, feed and heal immigrants.”, said Pelser.

The excess illegal immigrants cause a strain on the government which leads to prolonged processes for legal immigrants forcing them to not be able fully exercise their rights due to a strained immigration system. The Convention relating to the Status of Refugees provides that foreign nationals must be afforded the same rights afforded to citizens, this becomes difficult because there are also illegal nationals in the Republic.

Access to Socio-Economic Rights for Refugees, Asylum Seekers, and Migrants

Chapter 5 of the Refugees Act provides for the rights and obligations of the refugees in South Africa. Section 27 of the Act states that “a refugee- (a) is entitled to a formal written recognition of refugee status in the prescribed form; (b) enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution and the right to remain in the Republic in accordance with the provisions (c) of this Act; (c)is entitled to apply for an immigration Act, 1991, after five years’ continuous permit in terms of the Aliens Control residence in the Republic from the date  on which he or she was granted asylum, if the Standing Committee certifies that he or she will remain a refugee indefinitely.” Foreign nationals are entitled to the human rights in the Bill of Rights as they cater for everyone who is in the Republic. Of which among includes, human dignity, life, education, health care, housing, environment, etc. Section 27(g) give effect to section 27 and 29 of the Constitution as it states that foreign nationals are entitled to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time. Section 27(f) also states that foreign nationals are entitled to look for employment in the Republic which indirectly imply that they are entitled to be employed and be workers in the country and work in good establishments.

Article 2 of the Universal Declaration of Human Rights provides that everyone is entitled to the human rights envisaged in the text, without distinction of any kind, race, sex, nationality, social origin, property, birth or other status. These rights include the right to “to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work.” This right is protected by article 23 of the same declaration. The Constitution requires that these rights be progressively realised to comply with the rule of law. These rights of foreign nationals can be progressively realised by, “guarantying asylum seekers and refugees’ access to basic human rights. It goes further by defining minimal levels of protection and outlining the state’s responsibility for creating a more favourable environment for asylum seekers and refugees. This environment includes protection from refoulement, access to documentation, limited use of detention, and special provisions for unaccompanied children and the disabled. Following recent court decisions, the law also guarantees all asylum seekers and refugees the right to work as an important component of protecting their human dignity). The law also requires individuals to apply for asylum (there is no prima facie recognition), and each case must be decided on its individual merits.”

Foreign nationals are also entitled the protection provided for them by the laws of the country and international law. And to make sure that these rights are progressively realised, the state officials must make sure they provide adequate protection and fulfilment of these rights, in the same manner that they do to citizens of the Republic.

Conclusion

As much as foreign nationals are protected by various laws in the Republic and international, there is still that gap that the law has not yet closed between citizens and progressively realising the rights of foreign nationals. The public officials have a long way to go in making sure that citizens understand that foreign nationals are afforded by law to be in the country.

Bibliography

Constitution

The Constitution of the Republic of South Africa, 1996.

Case Law

Ruta v Minister of Home Affairs (2018) ZACC.

S v Makwanyane (1994), page1, (1995).

Abore v Minister of Home Affairs, 2021.

Journals

Callixte Kuvuro, The Value of Human Dignity in the Refugee Protection, 5, AHMR, 1510, 1527, (2019).

Reginald Legoabe & Mothepane Seolonyan, The Dangers of Illegal Immigration, AJET, 42, 46, (2023).

Andre J. Pelser, HEADING FOR CANAAN: A REFLECTION ON ILLEGAL MIGRATION IN SOUTH AFRICA, JCH, 1, 7, (1997.

Loren B. Landau, Protection and Dignity in Johannesburg: Shortcomings of South Africa’s Urban Refugee Policy, 19, JRS, 308, 315, 2006.

Legislation

Refugees Act, 1998.

Immigration Act, 2002.

Treaties.

Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, Apr. 22, 1954.

Universal Declaration of Human Rights, (Dec. 10, 19 

[1] Refugees Act, 1998, s. 1. (RSA).

[2] Id. s. 3.

[3] Id. s. 21. amended by Act 33 of 2008, s. 13.

[4] Ruta v Minister of Home Affairs (2018) ZACC, page1

[5] Republic of South Africa Const. Ch. 2. S. 2.

[6] Callixte Kuvuro, The Value of Human Dignity in the Refugee Protection, 5, AHMR, 1510, 1527, (2019).

[7] Republic of South Africa Const. Ch. 2, s.39(1)(b).

[8] S v Makwanyane (1994), page1, (1995).

[9] Refugees Act, 1998, s6(a), (RSA).

[10] Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, Apr. 22, 1954.

[11] Ruta v Minister of Home Affairs (2018) ZACC.

[12] Immigration Act, 2002, s1. (SA).

[13] Id. S34.

[14] Abore v Minister of Home Affairs, 2021.

[15] Reginald Legoabe & Mothepane Seolonyan, The Dangers of Illegal Immigration, AJET, 42, 46, (2023).

[16] Andre J. Pelser, HEADING FOR CANAAN: A REFLECTION ON ILLEGAL MIGRATION IN SOUTH AFRICA, JCH, 1, 7, (1997).

[17] Id.1, 8.

[18] Refugees Act, 1998, s27(a), (b), (c).

[19] Id. S27(g).

[20] Universal Declaration of Human Rights, (Dec. 10, 1948).

[21] Loren B. Landau, Protection and Dignity in Johannesburg: Shortcomings of South Africa’s Urban Refugee Policy, 19, JRS, 308, 315, 2006.