(Heleta, 2018)

On any day, if you are sick and need medical attention, all you need to worry about is bringing your Identification card and insurance to the hospital. In the worst case, if it’s an emergency and you require expensive treatment, your insurance could cover it, or your government can subsidize your expenses; even family members and friends can give you financial support. Most of the time, you might not think much about it because our governments ought to provide us health as it’s our human right and ultimately access to healthcare. It might not be the case if you are a foreign national, an immigrant, refugee, and asylum seeker residing in any country or, in this case, South Africa.  That was the case for an Ethiopian man of 27 years who was denied dialysis and organ transplant just because, as a South African non-National, he did not qualify to access these health services and treatments (Venter, 2014). With this shocking news, one is to wonder what health means if it is our human right, and yet some are denied access to healthcare which is indispensable in the attainment of health. A question to ask oneself is whether health as a human right applies to citizens/nationals and not immigrants and refugees, asylum seekers.

Health as a human right

Recognition of health as a human right is endorsed by the UN Declaration of Human Rights of 1948 and the World Health Organization (WHO) constitution of 1946 (WHO, 1946). In its definition by the WHO, Health is a state in which an individual is socially, mentally, and physically apt. It is not just the lack of illness (who, 2019).  On the other hand, a human right is a right inherited from all humans regardless of their religion, race, sex, nationality, ethnicity, language, and many more statuses (UN, 2019). Therefore health as a human right is the attainability of the highest form of health as it’s our principal right as humans and individuals. The question of whose duty it is to observe this right is left to the governments, which must stow adequate health and social actions for all people (WHO, 1946). To be in good health, one necessitates access to health services to enhance his/her wellbeing. In this way, access to healthcare becomes inherently a human right as it is a contributing if not necessary factor for the realization of good health (Brudney, 2016). If the governments are the duty bearers of this human right, the governments should ensure its citizens enjoy this right. A flow in this is that the stateless does to enjoy this right as they are not citizens, and the government is not responsible for them.

What health as a human right entails for immigrants, asylum seekers, and refugees

Notwithstanding that health is a human right, and its inclusion in the South African 1996 constitution, laws regarding access to health care deviate from the constitution itself (Alfaro-velcamp, 2017). Under section 27 of the 1996 South African constitution, it is stated that “everyone has the right to have access to healthcare services” (Alfaro-velcamp, 2017). This statement fails to specify; who has the right and whether it applies to non-nationals, refugees, immigrants, and asylum seekers.  The UNHCR report on “Ensuring Access to Healthcare” explains and directs more on the access of public health services from a refugee camp setting but lacks description on how to navigate it in the complex variation of a non-refugee camp setting (UNHCR, 2008).  Another limitation to the South African Constitution is the lack of differentiation between immigrants’ legal status in various scenes, such as access to healthcare and jobs (Alfaro-velcamp, 2017). Not all immigrants in South Africa are in camps; many are dispersed around the country. Some are economic migrants looking for job opportunities, and others are medical tourists seeking health services.

Contrary to the 1996 South African constitution, which lacks the specificity of who has access to healthcare, the Refugees Act of South Africa clearly states that “Refugees in South Africa have the same right as South Africans to access healthcare” (Scalabrini, 2019). The same act is inclusive for asylum seekers (Scalabrini, 2019). Recently South African Courts have corroborated that regardless of nationality or legal status, everyone has the right to access healthcare (Scalabrini, 2019). It means that non-nationals, asylum seekers, immigrants, refugees, medical tourists all have the right to have access to healthcare.

MSF introduces Tswane Migration project a hub that provides primary health services to undocumented migrants, asylum seekers and refugees living in Tshwane (MSF South Africa, 2019).

The Right Choice Dilemma

Although some acts specify that migrants have the right to access healthcare, others contradict these acts. It has been the case for the Immigration Act of South Africa, which says that state institutions, clinics, and hospitals included, should report to the Director-General of any illegal foreigner or any person whose status is unclear (Alfaro-velcamp, 2017). But if this law is to be implemented, it must not overshadow the patient’s rights present in any laws (Scalabrini, 2019). That is to say; illegal foreigners can’t be reported before treatment since under the South African Constitution and the Refugees Act illegal foreigners, foreigners have the right to access healthcare. But doctors and healthcare providers are conflicted about administering treatment or reporting an immigrant patient who has failed to provide his/her legal status. It is because, under the same Immigrant Act, it is stated that “anyone who intentionally facilitates an illegal foreigner to receive public services to which such illegal foreigner is not entitled shall be guilty of an offense and liable on conviction to a fine” (South African Government, 2002). Doctors swear to serve and provide health to their patients and communities regardless of their religion, race, age, gender, ethnic origin, sexual orientation, disease, disability, or other factors (Alfaro-velcamp, 2017). Doctors then face the right choice dilemma of either obeying their oath or the Immigration Act.

Medical Xenophobia as public hospitals deny migrants the access to health services. (Lepodise, 2018)

Lack of documentation a major roadblock to the access of healthcare by refugees, asylum seekers, immigrants

In clinics and hospitals, the staff must ascertain the legal status of their patients before rendering them any service according to the Immigration Act (South African Government, 2002). This scrutiny of legal status discourages undocumented immigrants from seeking care in fear of being reported, but also it deprives them of a specific form of care (Vearey, Modisenyane, & Hunter-Adams, 2017). Some immigrants are undocumented not because they failed to look for legal statutes but because of the Department of Home Affairs (DHA). The department itself reported an 89 percent rejection rate of asylum seekers (Alfaro-velcamp, 2017). It struggles to keep up with thousands of appeals that leave immigrants undocumented and uncertain of their legal status (Alfaro-velcamp, 2017). This cumbersome rejection rate might lead to living in South Africa undocumented rather than returning home where conditions might be precarious.

Ending Remarks

Some argue that South Africa’s healthcare has limited resources that barely cover its citizens, let alone immigrants.  Four million migrants, as reported by the United Nations’ 2017 Migration Report, are hosted in South Africa (South African Human Rights Commission, 2018). Compared to the South African population, they comprise only 3 percent  (Scalabrini, 2019); therefore, it is safe to say there isn’t any grappling over resources. Instead, the government should remodel their health system to be migrant-inclusive since they have to make policies and facilitate access to healthcare by everyone. As the South African constitution and Refugees Act highlight, refugees, undocumented migrants, and asylum seekers are included. Doctors shouldn’t have to choose to treat or not as it violates their Hippocratic oath, but it also gives room for healthcare inequality. Our role as citizens is to know our governments’ constitutions and plead for the realization of health as a right for not only ourselves but also immigrants. A single piece of paper should not define whether access healthcare or not, but most importantly, it should not conclude whether you live or die.


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