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Refugee and Migrants’ Rights

The Constitution requires that international human rights law be taken into account. Consequently, South Africa has a range of international legal commitments relating to the status of migrants. Select examples include: the Convention on the Status of Refugees (1951) and its Protocol (1967); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the International Covenant on Civil and Political Rights (ICCPR) (1966) and its First (1966) and Second (1989) Optional Protocols; the International Covenant on Economic, Social and Cultural Rights (1966); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) and its Optional Protocol (1999); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); and the Convention on the Rights of the Child (CRC) (1989).

Despite the protections offered to foreign nationals in the Constitution and progressive legislation in place protecting the rights of foreign migrants, the laws are often ignored in practice on the ground, leaving foreign nationals vulnerable and unable to claim their rights. Social and institutional xenophobia continues to plague South Africa.

Foreign nationals are routinely turned away by hospitals or schools, and frontline service delivery is often severely compromised despite laws and policies in place. Foreign nationals are also routinely arrested and unlawfully detained by the police, often having to bribe officials if they are not carrying documentation. Routine arrest, detention and deportation of migrants characterise how South Africa manages migration.

Corruption plagues the asylum system, contributing to systemic crisis and severely limiting access. The poor quality of decision-making results in almost routine rejection of applications for refugee protection in our country.

Organisations such as Lawyers for Human Rights have a strong track record of successful litigation on behalf of foreign nationals, especially in the area of immigration law.

Read the full report here, Public Interest Legal Services in South Africa

Organisations Working in the Space

  • Lawyers for Human Rights (LHR)
  • Legal Resources Centre (LRC)
  • ProBono.Org

Rights

Section 7(1) affirms that the Bill of Rights applies to all people in South Africa, including non-South Africans:

“7. (1) 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”.

Refugees and migrants are entitled to the protection of all rights in the Bill of Rights except those that are reserved specifically for South African citizens, including the right to citizenship, the right to a passport, the right to freely choose one's trade, occupation or profession, and certain political rights such as the right to vote.