Browsing by Author "Kavuro, Callixte"
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- ItemRefugees and asylum seekers : barriers to accessing South Africa’s labour market(University of the Western Cape, Faculty of Law, 2015) Kavuro, CallixteThis article demonstrates that the employment of those who are seeking or granted asylum in South Africa is very challenging. The challenges range from ill-sentiment towards non-citizens to legal and procedural barriers, such as, measures that are taken by different role players to protect citizens with regards to accessing the labour market.
- ItemRefugees’ access to socio-sconomic rights: Favourable treatment for the protection of human dignity(Stellenbosch : Stellenbosch University, 2018-12) Kavuro, Callixte; Botha, Henk; Stellenbosch University. Faculty of Law. Department of Public Law.ENGLISH ABSTRACT: The thesis deals with the question whether and to what extent refugees and asylumseekers are entitled to socio-economic rights and benefits. This is a controversial question, which is complicated by the co-existence of different bodies of law which apply to the treatment of non-citizens, in general, and refugees and asylum-seekers, in particular. On the one hand, South Africa has acceded to international refugee treaties and incorporated these treaties into its legal system through the Refugees Act 130 of 1998 (as amended) (―Refugees Act‖). This Act provides that refugees are entitled to all rights in the Bill of Rights, except those rights that are expressly reserved for citizens. Sections 26 and 27 of the Constitution of the Republic of South Africa, 1996 provide that ―everyone‖ has the right of access to adequate housing, and access to health care services, sufficient food and water, and social security. This seems to indicate that refugees and asylum-seekers are entitled to the socioeconomic rights enshrined in the Constitution. The Refugees Act, read through the lens of these constitutional provisions, signals South Africa‘s intention to offer effective protection to refugees and asylum-seekers, to respond to their suffering and to restore their self-reliance, participation, and agency. It does so, inter alia, by extending to them the right to have access to subsidised socio-economic goods and services. On the other hand, refugees and asylum-seekers are, in practice, excluded from certain socio-economic rights. This exclusion stems from a number of factors. First, they are treated as temporary residents in terms of the Immigration Act 13 of 2002. For this reason, the twin principles of self-sufficiency and exclusivity are often applied to them. In terms of these principles, non-citizens are generally admitted into South Africa on the condition that they are self-supportive and self-reliant. Moreover, they are precluded from accessing socio-economic programmes designed to support citizens who are vulnerable to poverty. Secondly, legislation conferring socioeconomic rights and benefits often restricts those rights to citizens and permanent residents. The legislation is thus not aligned with the Refugees Act. Thirdly, the Convention Relating to the Status of Refugees, 1951 (―the Geneva Refugee Convention‖) provides, in certain respects, for the same treatment of refugees as accorded to non-citizens in the same circumstances as refugees, or as accorded to non-citizens generally. Fourthly, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 (―the African Refugee Convention‖) requires a host state to alleviate refugees‘ misery and suffering as well as to offer them opportunities to achieve a better life and future. The thesis criticises the idea that refugees and asylum-seekers are entitled to socio-economic rights on the basis of the standard of the same treatment accorded to non-citizens. This standard is problematic, in so far as there is no other group of non-citizens whose circumstances correspond to those of refugees and asylumseekers. Moreover, the standard legitimises the application of the twin principles of exclusivity and self-sufficiency, as contemplated by immigration law, to refugees and asylum-seekers. The thesis criticises the exclusionary approach on the basis of emerging theories, norms, standards and practices, as emanating from international refugee law, human rights law, constitutional law, domestic refugee law and foreign and international jurisprudence. It examines the vulnerability of refugees, and argues that the rights flowing from refugee status demand special and differentiated treatment from that accorded to non-citizens generally. The Refugees Act was specifically adopted to exempt refugees and asylum-seekers from the emphasis, in immigration law, on exclusion and self-reliance, and to afford them special, favourable or differentiated treatment to ensure the protection of their well-being, health and dignity. For that reason, refugee principles should be given priority over immigration principles. The thesis examines refugees and asylum-seekers‘ entitlement to socio-economic rights through the prism of the constitutional rights and values of human dignity and equality, and with reference to the standards of same treatment and favourable treatment, as used in the Geneva Refugee Convention . It argues, first, that the right and value of human dignity requires that all human beings should be in a position to live their lives in accordance with the ends that they freely chose, or as autonomous agents who have the ability to define their own destiny. No-one should be reduced to a mere object of state power, or be left without the resources needed to pursue reasonable choices or to meet their own needs. Given the unique position and vulnerability of refugees and asylum-seekers, the state is under both a negative obligation to desist from conduct that would interfere with the exercise of their rights, and a positive obligation to create conditions in which they can participate in economic and social life. Secondly, the thesis draws on the distinction between formal and substantive equality, and argues that the rights of refugees and asylum seekers should be read through the prism of substantive equality. This could help enable an approach which recognises their vulnerability, and affords them differentiated and favourable treatment. The thesis focuses on three rights: the right of access to public relief and assistance, healthcare and adequate housing. A detailed analysis is offered of the extent to which refugees and asylum-seekers are given these rights, or are excluded from their protection. The national laws granting and regulating these rights are examined, in view of refugee law, international human rights, the South African Constitution, and foreign law. To the extent that these laws exclude refugees and asylum-seekers from socio-economic rights and benefits, the thesis analyses the constitutionality of these exclusions. Recommendations are also made for the amendment of certain distributive laws, to harmonise them with the Constitution and the Refugees Act. These laws include the Housing Act 107 of 1997, the National Health Act 61 of 2003, the Social Assistance Act 13 of 2004, and related policies and strategies.