The Plight of Hadiya asylum seekers and refugees

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There are estimated tens of thousands of Hadiya migrants in South Africa. Many of them make their way by crossing the borders of east and southern African countries in very harsh conditions to South Africa, a country that hosts millions of migrants from Africa and Asia.

South Africa attracts economic migrants because of the perception that economic migrants will gain better economic opportunities. The country is also rated as one of the best few countries in the democracy index in Africa.[1] This seems the reason why people who are persecuted for political reasons in their countries choose South Africa as their shelter.

As such, a person who has been persecuted in his country because he exercised his political opinion can freely exercise this right in South Africa. However, such exercise of civil and political rights comes with the sacrifice of socio-economic rights. As will be shown subsequently, a refugee in South Africa who has fled political persecution in his own country will once again find himself in a situation where he can hardly exercise his socio-economic rights.

As socio-economic rights have proved to be difficult to automatically enforce and materialise, South Africa has not been fully able to fulfil these rights even to its citizens. The duty of the state to give effect to the right to housing, the right to education, and the right to health have been confirmed by the South African Constitution.

The South African Constitutional Court has also in many cases, held that the state is duty bound to enforce these rights. As such, South African citizens can claim these rights whenever their socio-economic rights are violated. For example, a homeless South African has the right to require adequate housing from the government, and to sue the state if the state fails to provide him/her one.

Do these rights also apply to non-citizens?

The Constitution guarantees these rights to non-citizens in a like manner to citizens. Chapter two of the Constitution states:

“This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”

The Constitution affirms that the Bill of Rights are not exclusive to South African citizens. They are the rights of “all people” in the country. As the right to housing, the right to adequate health, the right to education and other socio-economic rights are inculcated in chapter two of the Constitution, and that the Constitution guarantees them to all people in the country regardless of their nationality, non-citizens can effectively claim these rights and have them enforced.

The Constitutional Court has applied the principle of non-discrimination based on national background in the case of Khosa v Minister of Social Development. It has also ruled that the Bill of Rights apply even to illegal immigrants in the case of Lawyers for Human Rights v the Minister of Home Affairs.

However, refugees and asylum seekers find the realisation of these rights very difficult in practice. Although refugees and asylum seekers are allowed to live in the country for definite periods of time, their right to housing, health and education is practically compromised. There is a strong need for effective implementation of the rights inculcated in the Constitution and laws. There is a serious need to go beyond what is written in the laws and to see what is in practice, and to align the practice to the spirit and letter of the law.

One of the problems asylum seekers and refugees face is the discrimination against them in housing. A survey of asylum seekers and refugees from Hadiya has shown that they are denied of renting houses by housing agencies only because of their nationality status. This happens regardless of the fact that a person is a recognised refugee who has adequate means to pay for housing. The question remains, why are refugees and asylum seekers who are allowed to stay in the country refused to get housing even when they have adequate means to pay for the housing?

Anna Tiirkaso holds an asylum seeker permit. He has been in South Africa for the last five years running his own spaza shops. He was repeatedly denied to rent houses so that he pays for South African citizens to rent a house for him with their ID.

All the participants of a survey for this article face similar housing problems like Anna Tiirkaso’s. The denial to rent houses in their own names has many repercussions in the exercise of other rights. For example, proof of residence is a precondition to open bank accounts so that refugees and asylum seekers, who are denied of renting houses in their own names, cannot fulfil this requirement. Even more, most banks refuse to open bank accounts to refugees and asylum seekers even when they fulfil the banks’ requirements. Refugees who work and earn money are left with no option than keeping money with them instead of saving in banks. This makes them more prone to burglary, theft and physical abuse.

The main problem does not lie in the laws and policies. However, there is still a need to devise specific ways to avoid the violation of these rights. There is a need to create better awareness to private and public bodies that deal with housing. There is a need to create awareness that people who have an asylum seeker permit and refugees are lawfully in the country, and hence it is unlawful and unconstitutional to discriminate against them.

It is also imperative that banks should allow asylum seekers and refugees to open accounts as this enables them to save money and to have access to different services. For instance, a refugee who wishes to study in a university needs to prove that she has sufficient funds to cover her study expenses. However, if she does not have a bank account, she cannot prove that she owns money to pay for her study.

As such, there are multifarious tasks required of NGOs, the government, the private and the public sectors. Awareness creation, lobbying for targeted and specific actions by the government, overseeing the implementation of refugee rights and reporting the progress is needed to give effect to the refugee rights provided in the constitution, laws and regional instruments to which South Africa is a party.

Abiy Alemu Ashenafi (LLB, LLM, LLM) is a human rights lawyer and the Director of the Center for Refugee Rights in Africa.


[1] See Democracy Index 2014, The Economist Inteligence Unit.

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