THE early days of the COVID-19 pandemic in South Africa saw the government impose a lockdown in a bid to save lives. It introduced several interventions to cushion the impact of the crisis caused by the shutdown of economic activities on citizens. Among the measures were food aid as well as unemployment and debt relief.
Refugees and asylum seekers expected similar protection. Their expectations flowed from the fact that the South African government has a responsibility to protect them according to the Refugees Act 130 of 1998.
The act incorporates international protections enshrined in the 1951 United Nations (UN) Convention and the African Union Convention. These require states or the UN High Commissioner for Refugees to uphold the human rights of refugees and asylum seekers. An asylum seeker is someone who has applied for sanctuary, and whose application is still being adjudicated. A refugee is someone who has already been granted asylum.
South Africa does not place refugees in camps, where their basic needs would be the responsibility of the UN. So the government is responsible for their socio-economic needs. These include food, shelter, healthcare and the right to run a business, work and study.
According to a 2019 UN report, the country had 89,285 formally recognised refugees and 188,285 asylum seekers. From 2008 until 2012, the number of asylum seekers had increased to 800,000 – mostly Zimbabweans. Besides Zimbabwe, asylum seekers in South Africa come mainly from Somalia, the Democratic Republic of Congo, the Republic of Congo, Ethiopia, Burundi, Pakistan and Bangladesh.
Socio-economic interventions
As some refugees and asylum seekers are active in the South African economy, their economic activities were also affected by the lockdown.
But it became evident early on that the state was reluctant to implement the Refugees Act in a way that would enable them to benefit meaningfully from its COVID-19 relief packages.
On 15 March 2020 President Cyril Ramaphosa stated that his cabinet was
finalising a comprehensive package of interventions to mitigate the expected impact of COVID-19 on the economy.
Such interventions would prioritise protecting the health and well-being of “all South Africans”. This, by implication, excluded refugees and asylum seekers.
My study examined the protection of the socio-economic rights of refugees and asylum seekers in the country during the pandemic. It also considered the impact of non-citizenship on the protection of these vulnerable people.
The research relied on secondary data such as government policies, judicial reviews, published opinions and comments as well as academic literature.
I found that although refugees and asylum seekers are protected in law, this is not always the case in practice. Asylum seekers’ interests are rarely considered when it comes to socio-economic protections. They must fend for themselves.
The study highlights the need for the country’s COVID-19 relief measures, and constitutional socio-economic protections in general, to be harmonised with the Refugees Act to promote access by formally recognised refugees to state relief programmes. The interests of asylum seekers, who are not fully protected by the act, also need to be considered as they too have socio-economic rights.
Findings
Food aid parcels: This was the first package initially distributed to provide emergency humanitarian assistance. The recipients were, in practice, required to have a South African identity document. As refugees and asylum seekers don’t have these, they were excluded.
Unemployment relief: The food parcels were later replaced by the monthly R350 (US$24) Social Relief of Distress grant for the unemployed. Beneficiaries included refugees. But asylum seekers were initially excluded.
They were later included after litigation by the Scalabrini Centre, an NGO that helps destitute South Africans and migrants in Cape Town. It successfully argued that the exclusion of asylum seekers was arbitrary and unreasonable. It also violated their constitutional rights to equality, dignity and access to social security.
Relief for small, medium and micro enterprises: Refugees and asylum seekers were unable to access these packages.
The Debt Relief for Distressed Business and the Business Growth/Resilient Facility packages were restricted to businesses owned 100% by citizens. Their employees had to be 70% locals.
The restructuring of loans or packages funded by the Small Enterprise Finance Agency was restricted to citizens and foreign nationals with permanent residence status. Refugees and asylum seekers are temporary residents, so they were not eligible.
The Spaza Shop Support package was mainly for citizens: 70% of the package was allocated to South African-owned informal retail stores (spaza shops). Those of foreign nationals, particularly permanent residents and refugees, got 30%. Asylum seekers were excluded. It is not clear whether the allocation reflected the ownership profile of spaza shop owners.
Relief packages for small and medium enterprises in the tourism industry were disbursed in line with the country’s Black Economic Empowerment policy. The policy seeks to enable meaningful participation in the economy by black people, who were disadvantaged by apartheid. This approach implied exclusion of refugees and asylum seekers as they did not fall in the category of beneficiaries.
Relief for employees and employers: Refugees and asylum seekers faced challenges in accessing the Temporary Employer/Employee Relief Scheme. The Department of Employment and Labour argued that its computer system was not designed to capture the numbers appearing on the refugees and asylum seekers’ status permits.
This persists even though the Equality Court ordered the department in 2017 to fix its computer system to capture the numbers.
Conclusion
The South African government has, over the years, displayed an ambivalent attitude towards the protection of refugees and asylum seekers. This is evident in its adoption of socio-economic laws which do not speak to the Refugees Act.
These include the Housing Act of 1997, the 2003 National Health Act, the 1999 National Student Financial Aid Scheme Act and the 1998 Skills Development Act.
This ambivalence stems from the notion among some within government that most asylum seekers and refugees are not “genuine”. This is because of gaps in the asylum management system that economic migrants exploit to secure their stay. Thus, genuine refugees and asylum seekers are barely considered as beneficiaries in socio-economic programmes. That’s why the government did not fully meet its commitment to treat refugees and asylum seekers with dignity and humanity.
