Callixte Kavuro
On World Refugee Day, which was commemorated on June 20, I again reflected on the socio-economic rights of refugees and asylum seekers, especially their right to adequate housing guaranteed by section 26 of South Africa’s Constitution.
Integral to this reflection is the fact that the right to adequate housing is universal as it applies to “everyone”.
In my 2018 doctoral study I dealt in detail with the question whether refugees and asylum seekers are entitled to have access to the housing programmes rolled out by the government.
I concluded that they are, in law, entitled to enjoy the right to housing in the same way citizens do. They face challenges when it comes to finding a roof over their head. There is no state programme to house the vulnerable people seeking asylum in South Africa.
They are compelled to cater for their housing needs like other foreign nationals do. Their rights are therefore neglected or overlooked.
Article 21 lays down three guiding principles with respect to the manner in which the right to housing should be extended to refugees and asylum seekers at national level.
The first principle provides that the right to housing shall be accorded to refugees lawfully staying in the territory of the host state.
The second principle provides that a host state shall confer on the said refugees “treatment as favourable as possible and, in any event, not less favourable than that accorded to (non-citizens) generally in the same circumstances”.
The third principle requires the host state to ensure that the enjoyment of the right is consistent with domestic housing laws, policies or regulations or is subject to the control of public authorities.
This guiding principle qualifies the scope of application of article 21.
To a considerable extent, these guiding principles were transposed into the South African legal system through the Refugees Act 130 of 1998 (as amended), which serves to give effect to and must be interpreted in the light of the 1951 Convention and other refugee and human rights instruments to which South Africa is a signatory.
The obligations of the state in the realisation of the right to housing is articulated under section 26(2) of the Constitution, which states that “[t]he state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”.
What this provision tells us is that the state could have considered the refugee rights under the Housing Act 107 of 1997.
It is constitutionally problematic that housing legislation does not provide for housing designed to improve the quality of lives of refugees. The provision of housing is fundamentally important to the protection of the well-being and dignity of refugees and asylum seekers.
The absence of considering refugee rights and principles in the housing legislation, regulations and programmes cause refugees and asylum-seekers to live in intolerable housing conditions, which contribute to their moral and social deterioration.
I therefore call on the government to consider the plight of refugees and asylum seekers in the housing sector by putting in place legislative and other reasonable measures that will assist them to find a roof over their head.
Regard should be given to the Constitutional Court’s reasoning that refugees are people “who had to flee their homes, and leave their livelihoods and often their families and possessions either because of a well-founded fear of persecution”.
Often asylum seekers “leave their homes in haste and find themselves precariously in the country of asylum without family or friends, and without any resources to sustain themselves”. Hence offering them a shelter over their head is a humanitarian act.
Dr Kavuro is a postdoctoral research fellow in the Department of Public Law at Stellenbosch University