In Response to the South African Human Rights Commission S Call for Written Submissions

Submission to the South African Human Rights Commission’s Public Hearings on Millennium Development Goals and the Realization of Economic and Social Rights in South Africa covering period April 2006 to March 2009

The University of the Witwatersrand, Forced Migration Studies Programme,

and

Consortium for Refugees and Migrants in South Africa (CORMSA)

08 May 2009

Table of contentsPage No

1About us1

2Brief overview2

3Submission on specific rights4

3.1Social security5

3.1.1Positive developments 5

3.1.2Challenges5

3.1.3Recommendations6

3.2Education8

3.2.1Positive developments8

3.2.2Challenges8

3.2.3Recommendations8

3.3Health10

3.3.1Positive developments10

3.3.2Challenges10

3.3.3Recommendations12

3.4Housing13

3.4.1Positive developments13

3.4.2Challenges13

3.4.3Recommendations13

3.5Land15

3.5.1Positive developments15

3.5.2Challenges15

3.5.3Recommendations15

4Recommendations to the South African Human Rights Commission15

FMSP and CORMSA submission 2009

1About us

TheForced Migration Studies Programme (FMSP) at the University of the Witwatersrand is Southern Africa’s premier centre for academic research and teaching on migration, aid, and social transformation. Since its foundation in 1998, it has become a key reference point for academics, service provides, and policy makers. Its staff and associates conduct innovative, empirically grounded research and training on migration and humanitarianism in the African context together with select post-graduate students from across the continent and beyond. Supported by the University’s extensive libraries and other resources, the programme provides critical research skills while contextualizing theoretical debates on migration, displacement, and humanitarianism in Africa.

The Consortium for Refugees and Migrants in South Africa (CoRMSA) is a non-profit, non-governmental Organisation committed to the promotion and protection of refugee and migrant rights. It is comprised of member organisations[1] and individuals dedicated to protecting the life and welfare of refugees, asylum seekers, and other international migrants entering or living in the Republic of South Africa. CoRMSA uses its membership network to advocate for rights-based refugee and immigration policies and laws, promote best-practice models, and encourage compliance with minimum international and national constitutional standards. In order to achieve these objectives, the CoRMSA programme includes advocacy, research, public awareness, capacity building, and networking.

In response to the South African Human Rights Commission’s call for written submissions on Millennium Development Goals and the Realization of Economic and Social Rights in South Africa, FMSP and CORMSA makes this submission on specific socio-economic rights. Given FMSP and CORMSA’s focus on migrants, the scope of this submission is limited to an assessment of the realization of economic and social rights of migrant populations in South Africa.

2Brief overview

The protection for socio-economic rights provided by the South African Constitution is progressive. The Bill of Rights extends many of these rights to ‘everyone’ living in South Africa, regardless of their nationality or legal status. These include access to basic education for children, emergency and basic healthcare, adequate housing, and basic social welfare protection. The Bill of Rights also enshrines the right to dignified work. Education and healthcare rights are absolute, while rights to housing and social welfare are constrained by the government’s ability to ‘progressively realise’ those rights through the provision of infrastructure and social welfare programmes. However, the state has the obligation to extend the basic services such as education and healthcare to migrants, especially those under its protection regardless of their status or documentation. The state also has a moral obligation, consistent with its commitments to international standards, to provide basic socio-economic protection to undocumented migrants. While there is no generic right to employment, the right to fair and dignified working conditions once employed is universal.

The protection of basic socio-economic rights and access to public services is especially important for migrants in South Africa where even legally recognised refugees do not receive dedicated shelter, food, healthcare or education. Rather, refugees and all other non-nationals are expected to find work, source accommodation on the open market, and access education and healthcare services from mainstream public institutions. While self-sufficiency and integration is a progressive policy that FMSP and CoRMSA support, its effectiveness relies on systems that promote, rather than block, access to employment, accommodation, basic welfare, health and education.

Empirical research data from the FMSP’s research initiatives reveal that there arehigh levels of exclusion from the basic rights to education, basic healthcare and social welfare, as well as high levels of discrimination and abuse in private accommodation and employment markets. Furthermore, there are few avenues of recourse when such discrimination and abuse occurs. The exclusion we observe is due to gaps in both policy and implementation. To overcome these shortcomings, the primary departments responsible for social-service provision—including the Departments of Education, Health, Social Development, Housing and Labour—should have clear policies for the inclusion of refugees, asylum seekers and, where applicable, undocumented migrants, in their services. They should also ensure that all front-line staff are aware of the right of asylum seekers, refugees and undocumented migrants to access services.

Indeed, despite the fact that the Constitution accords socio-economic rights to various categories of migrants, few Departments or public service providers have adequate policies and practices relating to the inclusion of refugees, asylum seekers and migrants. The lack of effective policy implementation is due to a deficit in co-ordinated governmental self-monitoring, either by a lead agency such as the DHA, or by a dedicated cluster of departmental representatives. The lack of coordinated and effective implementation by South Africa of its socio-economic commitments as enshrined in its Constitutional Bill of Rights for all people who live in it hampers its ability to meet the Millennium Development Goals.

An encouraging development is the increased recognition among state officials that while in the past South Africa, adopted a policy of controlling migration, that generally failed, there is need to rethink that policy and rather move towards managing migration.[2] Such a shift is informed by the recognition of the value of migration in local and regional social and economic development. Such an approach would provide further opportunities for regional trade at various levels and promote skills sharing across the region. In this way, South Africa’s development and achievement of the Millennium Development Goals would have positive benefits for regional development. Similarly, regional stability can only be beneficial for South Africa’s development. Indeed as the CORMSA report notes:

Without migrants—people fleeing poverty or violence and those simply looking for a better life—South Africa would be a much poorer place. Throughout the country’s history, gold extracted from the Witwatersrand has been carried to the surface on the backs of workers from Mozambique, Zimbabwe, Zambia, and South Africa. With today’s skills shortages, agriculture, industry, and education can only thrive by drawing on the energy and skills of those from outside the country. And as these industries grow, so too will opportunities for South African citizens. They will expand further as remittances from South Africa spread wealth throughout the region in ways that promote political stability and nourish markets. The welfare of South Africa has always depended—and always will—on its neighbours and those from much farther away. By neglecting, denigrating, and excluding foreigners living here, we erode those bonds.

It is therefore imperative that the South African state represented by the various departments ensure that the socio-economic rights enshrined in the Constitution are accorded to all without discrimination, if the country is to achieve its Millennium Development Goals.

3Submission on specific rights

This submission is structured into 5 specific rights: Social security, education, health, housing and land and focuses on three main issues:

(1)Positive developments if any relative to migrants access to realization of socio economic rights in South Africa. This section also includes progress made and refers to specific legislative framework and policies for each right.

(2)The challenges that are faced by migrants in the realization of specific socio- economic rights with attendant consequences to South Africa’s achievement of the Millennium Development Goals.

(3)Specific recommendations to various government agencies in redressing the identified challenges.

This submission is informed principally by the findings of the CoRMSA Report of 2008 titled “Protecting Refugees, Asylum Seekers and Immigrants in South Africa”. Further information was received from CoRMSA members and other organizations working in the refugee/migrant sector.

3.1Social security

3.1.1Positive developments

Government Regulations[3] came into effect on the 22 August 2008 relating to the application and payment of social assistance and the requirements or conditions in respect of eligibility for social assistance. The Regulations provide for recognised refugees, whose status has been determined and who have been provided with a section 24 permit under the Refugee Act 1998, to apply for the Disability grant, the Foster Care grant, the Care Dependency grant and the Social Relief and Distress. Eligibility for the grants is to be determined on the same basis for refugees as South African Citizens and permanent residents.

3.1.2 Challenges

Despite legislative and administrative provisions for certain forms of social assistance for non nationals from the government, in practice such assistance is almost never available; Indeed despite the new regulations, most refugees in need of social assistance do not access the grants due to incessant delays and frustrations of accessing identify documents from the DHA which are required before issuance of the grants.
The DSD has not yetengaged in public awareness campaigns to inform refugees who qualify for Disability Grant that they can now apply for this grant and the qualifying criteria.
There is no provision within the 2008 Regulations for Asylum Seekers to automatically qualify for the Social Relief of Distress grant. Their claims are referred to the DSD for evaluation and assessment by social workers where, due in part to staff shortages, the cases are severely delayed or unattended. This is a vulnerable group of people who are most in need of emergency assistance but for whom aid is delayed by protocol.
There is no provision in the 2008 Regulations for refugee children, unaccompanied minors and children of documented and undocumented asylum seekers, to receive the Child Support Grant even though the South African constitution protects all children specifically and in light of the fact that South Africa ratified the Convention on the Rights of the Child. Whereas the Convention on the Rights of the Child and the Committee on the Rights of the Child encourage governments to undertake and develop a comprehensive national agenda for children. Further to develop permanent bodies or mechanisms to promote coordination, monitoring and evaluation of activities throughout all sectors of government. Also to ensure that all legislation is fully compatible with the Convention and to ensure that sufficient data are collected and used to improve the plight of all children in each jurisdiction.
In the absence of direct assistance from the government, many foreign-nationals are heavily reliant on assistance from under-staffed and under-resourced NGOs, refugee self-help organizations and religious organisations.

3.1.3 Recommendations

To the National Department of Social Development and other related Departments

Finalise plans to extend disability grants to recognised refugees, and implement the application process as soon as possible;
Ensure and facilitate that eligible refugees receive identity documents that are requisite in order to access social assistance;
Confirm and circulate a policy on non-citizen access to the Social Relief of Distress grant, to ensure consistent access around the country;
Extend the 2008 Regulations to allow for Asylum Seekers to qualify for the Social Relief of Distress.
Compile a database of unaccompanied minors who have migrated permanently to South Africa;
Facilitate access to schools and shelters for permanent and circular migrant children.

3.2Education

3.2.1Positive developments, progress and legislative framework:

Children’s rights organizations report some notable successes in educating school principals about migrant children’s rights to education and school access.
Relevant legislative framework is the South African Schools Act, Policy on no fee schools

3.2.2Challenges

Close to one third of school age non-national children are currently not enrolled in schools due to an inability to pay fees, the costs of transport, uniforms and books, or explicit exclusion by school administrators. This is a violation of the law;
Non-national children in schools report being regularly subjected to xenophobic comments by teachers or other students;
There is still reluctance from the DoE to accept undocumented children. This hinders efforts to meet goal 2 of the Millenium Development Goals and ensure universal primary education by 2015;
Refugees and asylum seekers who leave their countries in the midst of persecutions or threats to their lives may not have had a chance to carry their educational certificates or in some cases were lost or destroyed. Without such documents it is often an uphill task to get admission to institutes of higher learning or employment;
Tertiary education is currently very difficult for a refugee to undertake, since they are not entitled to bursaries like South African citizens. Without such funding, it is often extremely difficult for refugees to pay for transport, books and school fees.

3.2.3Recommendations

To the National and Provincial Departments of Education

Revise the Schedule relating to the Admission Policy for Ordinary Public Schools to reflect the right of children without South African birth certificates to access education, and remove any penalties against school principals who grant such children their right;
Ensure that all schools are trained to recognise the various forms of refugee and asylum documentation and be compelled to grant children access on the basis of these documents;
Until the policy of ‘no-fee schools’ has been completely implemented, ensure that non-citizens who are unable to pay school fees have equal access to school-fee exemptions as indigentSouth Africans, and introduce means of subsidising the ‘hidden costs’ of schooling, such as transport, uniforms and materials;
Enhance capacity-building and training of all school staff members to address issues of xenophobia and to improve different groups of foreigners’ access to education;
Include consideration of foreign children in ongoing debates on state-sponsored pre-school education provision;
Issue a strong statement that all children of qualifying age, regardless of income or documentation status, can and should attend school;
Investigate reports where schools have excluded migrant children;
Circulate a policy statement to all schools on the process for employing non-nationals as teachers.
Work with the Council of Educators to speed up the process of registering qualified foreign teachers; and
The Department of Education should create a mechanism whereby entry exams can be offered or institute a verification process to determine the qualification of an refugees and asylum seekers who may not be in possession of their documents in order to provide vulnerable migrants a chance to start their lives afresh and in turn be able to contribute to the realization of the Millennium Development Goals in South Africa.
Given that South Africa does not need more unskilled workers, anyone wanting to continue their education including migrants should be encouraged to do so through provision of bursaries or financial support from the department of education.
Most migrants are often highly skilled and could be of considerable use to South Africa. However, many experience discrimination from employers and government bodies (e.g. The South African Qualification Authority – SAQA) and find it difficult to get work, even in sectors where there is a shortage of skilled workers. For a country to prosper it needs to make use of all its resources and should therefore empower refugees by including them in training programmes and other educational opportunities.

3.3Health

3.3.1Positive developments

The Department of Health issued a directive in September 2007 that refugees and asylum seekers, including those without documentation, should have equal access to antiretroviral treatment (ART) at all public health providers.

3.3.2Challenges

Refugees and asylum seekers continue to experience negative interactions with, experiences of, and treatment by public health care providers;
Ambiguity persists within the public system on refugees’ and asylum seekers’ rights to access healthcare in general and anti-retroviral treatment (ART) in particular;
Prevailing negative assumptions persist that consider migration into South Africa as placing a burden on South African health services. However, monitoring data indicate that less than half of all international migrant respondents have ever needed healthcare in South Africa, with Zimbabweans being the group least likely to need healthcare services. Of those seeking care, many refugees and asylum seekers report being refused access to treatment at public clinics and hospitals. Predictably, migrants often confront the same understaffing, lack of medication and long waiting times at public health care providers as many South Africans do. But in many instances, international migrants also face discrimination and ignorance of their rights when they attempt to access medical services. Data from the FMSP Migrant Rights Monitoring Project and other research indicates that:

• One quarter of refugees, asylum seekers and other international migrants who have tried to access the public health system report challenges;

• Lack of official documentation from the DHA continues to hinder access to healthcare;

• Confusion exists amongst healthcare providers over the rights different categories of migrants have to services and the fees to be paid;

• There are concerns over international migrants’ access to emergency treatment and ambulances, with reports of individuals being charged. This indicates widespread ignorance of the fact that everyone in the country, regardless of legal status, is entitled to life-saving care;