What rights to accessing education, healthcare and other vital services do migrants have?

30 Aug 2024

‘There are various pathways and provisions in the law that recognise that people should not be stateless, and we are failing to ensure that these people have papers,’ says Global Movement Against Statelessness’ Christy Chitengu.

Christy Chitengu was born in South Africa and regards herself as a South African, despite her parents being Zimbabwean.

She had called South Africa home for her entire life, but for many years, Chitengu could not freely access services that many citizens and residents take for granted.

“I was undocumented for most of my life, so I have a lived experience of what it’s like to live in South Africa without papers. The exclusion from [accessing services] is vast and it touches the most vital rights,” said Chitengu.

She said she only realised the challenge of not having documentation when she was in Grade 11 and, with 10 undocumented pupils, was called into the principal’s office at her high school.

“Sitting in the office, I was questioned by the principal, who asked why I was in school and how I got into school. ‘You cannot write your matric exams if you do not have documentation,’ [said the principal.]”

National legislation states that non-South African children, including undocumented persons, asylum-seekers and refugees, may not be denied access to a basic education. This legal framework has been upheld by the courts.

Chitengu and her mother went to Home Affairs, where she was told that her South African birth certificate did not mean she could go to school here.

“A lot of people don’t realise that these handwritten birth certificates that they hold on to are insufficient, and that only comes to light when they try to access services like education,” she said.

Chitengu’s experience effectively effectively highlighted the bureaucratic hurdles that restrict access to education for many undocumented minors.

As a 16-year-old, Chitengu contacted Lawyers for Human Rights, which helped her get a court order that reaffirmed her right to education and allowed her to write her final exams.

After years of being undocumented, Chitengu obtained her South African citizenship last year, following the judgment in Ali v Minister of Home Affairs which, in summary, declared that persons over the age of 18 born of non-South African parents in South Africa were citizens, on condition that their births were registered and they could prove their presence in SA from birth to date.

Chitengu is now the co-lead of the Global Movement Against Statelessness.

Read more: You’re wrong, Gayton McKenzie: Undocumented children do have the right to basic education

Health for all

Section 27(1) of the Constitution says everyone living in South Africa has the right to access healthcare services. However, this was not what an asylum seeker experienced after suffering an injury that needed urgent medical attention.

Speaking to Daily Maverick on condition of anonymity, the asylum seeker told how he struggled to access healthcare services because he was undocumented due to inefficiencies and alleged corruption at the Home Affairs refugee reception centre.

He initially had valid documentation as an asylum seeker. It expired in 2020 and he could not renew it because of the Covid-19 lockdown. After the lockdown, his attempts to renew his papers met with challenges from Department of Home Affairs officials, including requests for bribes to speed up the process. Without documentation, he had difficulty getting a job, opening a bank account and accessing vital services.

“I realised I was in trouble when I got into an accident and injured my knee. I needed an operation, but when I went to Helen Joseph Hospital, they refused to help me unless I paid upfront and showed them my papers. I tried so many times but the staff were so rude. [They] turned me away and offered me no help,” he said.

Read more: Deadly Marabastad stampede sheds light on struggles of undocumented migrants in SA

In 2023, the public interest law group SECTION27 and three people took the Gauteng Department of Health, the National Department of Health and Charlotte Maxeke Johannesburg Academic Hospital to court for excluding asylum seekers, undocumented migrants and people dealing with statelessness from accessing free healthcare.

Read more: No cash, no care – Gauteng hospitals turn away undocumented children and pregnant women

Chitengu said many migrant mothers were turned away from hospitals because of a government circular that authorised the denial of access to healthcare.

This is despite national legislation stipulating that all pregnant and lactating women, and children under six, irrespective of nationality and documentation status, have the right to access free health services at all public establishments.

It took a court case “to remind people that everyone has the right to basic healthcare services, but above and beyond [that], pregnant and lactating mothers also are entitled to maternal healthcare. The fact that … a pregnant mother should be turned away is a grave denial of someone’s right to healthcare,” said Chitengu.

Realising administrative justice

South Africa’s porous borders and lack of border authority have made it easier for people to enter the country illegally, increasing the number of undocumented migrants. However, inefficiency and corruption at the Department of Home Affairs have also created a situation where foreign nationals who want to live in South Africa legally cannot do so because they cannot access documentation.

“If we had a well-run Home Affairs department that attends to birth registrations and naturalisation in a timely fashion, if the Refugee Reception Office was processing people’s asylum and refugee claims in a timely manner, we would not have this amount of undocumented people in this country,” said Chitengu.

In July, in his first official act as Home Affairs minister, Leon Schreiber extended the temporary concession for foreign nationals who were awaiting the outcome of visa, waiver and appeal applications.

The extension effectively safeguards applicants from adverse consequences while they await the outcome of their applications. The concession applies to migrants who have been legally admitted into South Africa.

Schreiber also announced that the department would re-establish the dormant Immigration Advisory Board to address illegal migration in South Africa. The board will advise the government on immigration policies to ensure that they align with national interests and address the complexities of migration.

Read more: New Home Affairs minister scraps punitive visa regime – in a day

Chitengu said, “There are various pathways and provisions in the law that recognise that people should not be stateless, and we are failing to ensure that these people have papers.

“The approach should be to make sure that people are documented. Making sure people are documented does not mean giving everybody citizenship; it means giving people a piece of paper with their name and nationality that they can use to live a full life in South Africa. It all comes down to administrative justice.” DM

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South Africa

Health for all

Realising administrative justice