​World Refugee Day was observed on Tuesday 20 June. In an opinion piece for the Cape Times, Dr Callixte Kavuro from the Department of Public Law argued that the South African government should put in place housing legislation and other reasonable measures that will assist refugees and asylum seekers to find a roof over their heads.

• Read the article below or click here for the piece as published.

Callixte Kavuro*

On World Refugee Day, which was celebrated on Tuesday 20 June, 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 of 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 heads. 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.

The absence of a state programme to house refugees and asylum-seekers is therefore inimical to international and national refugee law, on the one hand, and to constitutional law, on the other.

In terms of international law, refugees and asylum-seekers are entitled to the right to housing as guaranteed by Article 21 of the 1951 Convention Relating to the Status of Refugees. 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 the 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. 

Firstly, the right to housing is extended to recognised refugees (i.e. de jure refugees) by section 27(b) of the Refugees Act, which provides that a refugee is entitled to “full legal protection, which includes the rights set out in Chapter 2 of the Constitution, except those rights that only apply to citizens". Secondly, the right is extended to apply to asylum seekers (i.e. de facto refugees) by article 27A(d), which provides that an asylum seeker is entitled to “the rights contained in the Constitution of the Republic of South Africa, 1996, in so far as those rights apply to an asylum seeker." Rights that are vested in everyone by the Constitution include the right to housing.

The claim that the right to housing is not reserved for citizens only is clear from section 26(1) of the Constitution, which vests the right in “everyone". In particular, section 28(1)(c) of the Constitution guarantees the right of every child to shelter. The formulation of the beneficiaries (“everyone" and “every child") suggests that refugees and asylum seekers are entitled to these rights for purposes of sections 27(b) and 27A(d) of the Refugees Act. An interpretation of the said rights in view of other fundamental, interrelated, and mutually supporting rights such as the right to human dignity, equality, freedom and security of the person and other core socio-economic rights supports this reading.

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 refugee rights under the Housing Act 107 of 1997.

It is crucial to note at this point that the Housing Act was drafted and adopted before the Refugees Act could be adopted by Parliament in that the housing legislation did not address the rights of refugees and asylum seekers, who were yet to be legally admitted in the country. For that reason, refugees and asylum-seekers were (and still are) excluded from access to housing and other related rights in terms of the Housing Development Policy (HDP) and its programmes. This exclusion stems from the definition of housing development in the Housing Act, which restricts access to housing to citizens and non-citizens with permanent resident status.

The right to housing is further limited by the 2010 National Housing Policy and Subsidy Programmes. It states that only citizens and permanent residents are eligible for the national housing programme. Citizens and permanent residents can therefore benefit from the Integrated Residential Development Programme, the Institutional Housing Subsidy Programme, the Individual Subsidy Programme, the Rural Housing Programme and the People's Housing Process. These programmes are part of the HDP. Essentially, the HDP is based on the principles contained in the 1994 Reconstruction Development Programme which sought to provide “citizens with a permanent residential structure with secure tenure, potable water, adequate sanitation facilities, and domestic energy supply".  Citizenship and permanent resident status are posited as requirements for access to housing subsidies.

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 causes refugees and asylum-seekers to live in intolerable housing conditions, which contribute to their moral and social deterioration. Their exclusion from housing programmes raises the question of whether refugees should be accorded the same treatment enjoyed by non-citizens as it is defined in terms of the Immigration Act 13 of 2002 or whether they should be afforded favourable differentiated treatment adequate for the protection of their well-being in terms of the Refugees Act.

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 heads. 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 shelter over their heads is a humanitarian act.

• Photo courtesy of Wikimedia Commons.

*Dr Callixte Kavuro is a postdoctoral research fellow in the Department of Public Law at Stellenbosch University.