Refugees' access to socio-sconomic rights: Favourable treatment for the protection of human dignity

[摘要] ENGLISH ABSTRACT: The thesis deals with the question whether and to what extent refugees and asylumseekersare entitled to socio-economic rights and benefits. This is a controversialquestion, which is complicated by the co-existence of different bodies of law whichapply to the treatment of non-citizens, in general, and refugees and asylum-seekers,in particular. On the one hand, South Africa has acceded to international refugeetreaties and incorporated these treaties into its legal system through the RefugeesAct 130 of 1998 (as amended) (―Refugees Act‖). This Act provides that refugees areentitled to all rights in the Bill of Rights, except those rights that are expresslyreserved for citizens. Sections 26 and 27 of the Constitution of the Republic of SouthAfrica, 1996 provide that ―everyone‖ has the right of access to adequate housing,and access to health care services, sufficient food and water, and social security.This seems to indicate that refugees and asylum-seekers are entitled to the socioeconomicrights enshrined in the Constitution. The Refugees Act, read through thelens of these constitutional provisions, signals South Africa's intention to offereffective protection to refugees and asylum-seekers, to respond to their suffering andto restore their self-reliance, participation, and agency. It does so, inter alia, byextending to them the right to have access to subsidised socio-economic goods andservices.On the other hand, refugees and asylum-seekers are, in practice, excluded fromcertain socio-economic rights. This exclusion stems from a number of factors. First,they are treated as temporary residents in terms of the Immigration Act 13 of 2002.For this reason, the twin principles of self-sufficiency and exclusivity are oftenapplied to them. In terms of these principles, non-citizens are generally admitted intoSouth Africa on the condition that they are self-supportive and self-reliant. Moreover,they are precluded from accessing socio-economic programmes designed to supportcitizens who are vulnerable to poverty. Secondly, legislation conferring socioeconomicrights and benefits often restricts those rights to citizens and permanentresidents. The legislation is thus not aligned with the Refugees Act. Thirdly, theConvention Relating to the Status of Refugees, 1951 (―the Geneva RefugeeConvention‖) provides, in certain respects, for the same treatment of refugees asaccorded to non-citizens in the same circumstances as refugees, or as accorded tonon-citizens generally. Fourthly, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 (―the African Refugee Convention‖)requires a host state to alleviate refugees' misery and suffering as well as to offerthem opportunities to achieve a better life and future.The thesis criticises the idea that refugees and asylum-seekers are entitled tosocio-economic rights on the basis of the standard of the same treatment accordedto non-citizens. This standard is problematic, in so far as there is no other group ofnon-citizens whose circumstances correspond to those of refugees and asylumseekers.Moreover, the standard legitimises the application of the twin principles ofexclusivity and self-sufficiency, as contemplated by immigration law, to refugees andasylum-seekers. The thesis criticises the exclusionary approach on the basis ofemerging theories, norms, standards and practices, as emanating from internationalrefugee law, human rights law, constitutional law, domestic refugee law and foreignand international jurisprudence. It examines the vulnerability of refugees, and arguesthat the rights flowing from refugee status demand special and differentiatedtreatment from that accorded to non-citizens generally. The Refugees Act wasspecifically adopted to exempt refugees and asylum-seekers from the emphasis, inimmigration law, on exclusion and self-reliance, and to afford them special,favourable or differentiated treatment to ensure the protection of their well-being,health and dignity. For that reason, refugee principles should be given priority overimmigration principles.The thesis examines refugees and asylum-seekers' entitlement to socio-economicrights through the prism of the constitutional rights and values of human dignity andequality, and with reference to the standards of same treatment and favourabletreatment, as used in the Geneva Refugee Convention . It argues, first, that the rightand value of human dignity requires that all human beings should be in a position tolive their lives in accordance with the ends that they freely chose, or as autonomousagents who have the ability to define their own destiny. No-one should be reduced toa mere object of state power, or be left without the resources needed to pursuereasonable choices or to meet their own needs. Given the unique position andvulnerability of refugees and asylum-seekers, the state is under both a negativeobligation to desist from conduct that would interfere with the exercise of their rights,and a positive obligation to create conditions in which they can participate ineconomic and social life. Secondly, the thesis draws on the distinction betweenformal and substantive equality, and argues that the rights of refugees and asylum seekers should be read through the prism of substantive equality. This could helpenable an approach which recognises their vulnerability, and affords themdifferentiated and favourable treatment.The thesis focuses on three rights: the right of access to public relief andassistance, healthcare and adequate housing. A detailed analysis is offered of theextent to which refugees and asylum-seekers are given these rights, or are excludedfrom their protection. The national laws granting and regulating these rights areexamined, in view of refugee law, international human rights, the South AfricanConstitution, and foreign law. To the extent that these laws exclude refugees andasylum-seekers from socio-economic rights and benefits, the thesis analyses theconstitutionality of these exclusions. Recommendations are also made for theamendment of certain distributive laws, to harmonise them with the Constitution andthe Refugees Act. These laws include the Housing Act 107 of 1997, the NationalHealth Act 61 of 2003, the Social Assistance Act 13 of 2004, and related policies andstrategies.

[发布机构] Stellenbosch University