While the Health Act states that refugees, asylum seekers, migrants and undocumented persons should be given basic access to healthcare, that is not happening on the ground and it is a challenge for many documented and undocumented persons who don't have the means to pay, writes Sibusisiwe Ndlela, Boitumelo Masipa and Mbali Baduza.
The Covid-19 pandemic has brought into stark focus the deficiencies in systems that impact the most vulnerable people across the globe. None more so than the resilience of refugees, migrants, asylum seekers and undocumented persons affected by statelessness.
This year, the commemoration of World Refugee Day, on 20 June 2021, coincided with the 70th anniversary of the United Nations’ 1951 Refugee Convention, a critical document that outlines the rights of refugees and the legal obligations of States to protect them. However, since the outbreak of the Covid-19 pandemic, many states have seemingly abandoned their responsibility to refugees and asylum seekers.
The measures adopted by many countries to combat the spread of the virus have made survival worse for displaced persons. And as the pandemic exposed the vulnerability and the faultlines of health systems under immense strain, access to healthcare has been beyond the reach of many forced to flee their home countries.
Upsurge in requests
A circular issued by the Gauteng Department of Health (GDoH) in May 2020 has made serious inroads into the right of migrant persons to access healthcare services in the province. The circular states that the Department requires specific categories of migrants to pay for healthcare services upfront when accessing public healthcare facilities - without due regard for their ability to pay. This circular categorically breaches the provisions of the Constitution, the Refugees Act and the NHA. The GDOH has previously had to withdraw circulars that cause similar effects to this one.
Subsequent to the circular being brought into effect, SECTION27’s advice desk, which deals with queries related to access to health services and basic education on a pro bono basis, has seen an upsurge in the requests for assistance with migrant clients seeking services from hospitals in Gauteng. We note with concern increased reports of chronically ill cancer patients denied access to medicines, pregnant women denied access to maternal and reproductive health services, and young children requiring emergency treatment turned away from facilities.
The health circular is one example of DOH participating in systematic restriction of migrant rights over the years.
On 17 June, SECTION27, the Jesuit Refugee Service and Lawyers for Human Rights called out the DOH acting with the Department of Home Affairs, who were deliberately withholding the proof of birth forms of children of migrants, refugees, asylum seekers and undocumented persons who are unable to pay hospital fees. This denial of proof of birth when parents cannot afford to pay costs is a discriminatory practice that renders children stateless, the consequences of which leads to the exclusion of children from accessing basic education, healthcare and other services.
These recent measures taken by the GDOH feed xenophobic sentiments, leading to further exclusion and discrimination against refugees, asylum seekers, migrants, and undocumented persons.
Migrant rights are constitutionally protected
South Africa is a signatory to the UN 1951 Refugee Convention. Then in 1998, South Africa domestically enacted the Refugees Act, which regulates the status and rights of people seeking asylum in South Africa as a consequence of persecution in their home countries.
The South African legal framework for migrant persons is predicated on the Constitution, which sets out a suite of basic human rights under Chapter 2. Reinforcing this, the Refugees Act states that the Bill of Rights applies to refugees and asylum seekers to the extent that the rights are applicable. This includes the right to access healthcare services, social security and even more fundamentally, the right to human dignity and equality.
Previously considered a place of refuge for Africans throughout the continent and lauded for progressive laws, South Africa’s implementation of the Refugees Act, policy, and regulation has shifted to fall short of international and constitutional standards.
Following the introduction of the Refugees Amendment Act 33 of 2008, effective from 1 January 2020, government has incrementally restricted the rights of refugees and asylum seekers in South Africa. In particular, the new strict - and frankly impractical - administrative rules to apply for asylum have limited the right of asylum seekers to work and study in South Africa, which then undermines their ability to support themselves.
Poor migrants denied access to healthcare
In relation to the protection of the right to health for documented and undocumented persons living in South Africa, the National Health Act (“the NHA”) indicates that everyone must have access to maternal healthcare, primary healthcare services for the treatment of infectious diseases such as HIV and TB.
Furthermore, both the Constitution and the NHA stipulate that no person can be denied emergency healthcare services. For all other healthcare services, documented and undocumented migrants may be required to make a co-payment at public facilities. However, the National Uniform Patient Fee Schedule sets out that documented and undocumented persons from the SADC region should be treated like South Africans, and out of pocket fees must be determined by a means test.
While there are laws in place to ensure that refugees, asylum seekers, migrants and undocumented persons are afforded a basic level of access to healthcare, the reality for many documented and undocumented persons is challenging, and for most, accessing healthcare is more and more determined by their ability to afford. This leaves many undocumented and documented persons unable to seek medical attention.
In a time where the Covid-19 pandemic has caused global economic and social havoc, documented and undocumented persons have been particularly vulnerable in this time of crisis. Many public sector patients have been deterred from seeking healthcare during the Covid-19 pandemic, and for migrants, the additional burdens of having to pay fees - where the Constitution and other policies protect them from doing so if they cannot afford to - will have long term adverse effects on the health of migrant communities.
As Covid-19 has shown us, the health of one affects the health of all” or something. It is fitting that for this year’s World Refugee Day there was a call for solidarity, appropriately themed: Together, we heal, learn and shine.
- Ndlela is an attorney at SECTION27; Baduzais a researcher at SECTION27; and Masipa is a communications officer at SECTION27.
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