Social protection as a tool in combating poverty: the case of refugees and asylum seekers in South Africa and Germany Mr DC Wabo (Research Assistant) CICLASS, Faculty of Law, University of Johannesburg.

Footer2 INTRODUCTION This presentation concerns the importance of extending social security protection to refugees and asylum seekers in South Africa and Germany. The domains of social security include poverty prevention and poverty alleviation ( SA White Paper on Social Welfare 1997) Why refugees and asylum seekers among various non-citizens? - Refugees and asylum seekers are conceptually different from migrants as they have lost the protection of their home State. - They are usually without food, shelter and clothing. - Their only option is reliance on social security protection which is often considered to be a safety net.

Footer3 INTRODUCTION CONT’D Question may be asked why compare Germany and South Africa? - They host a large number of foreign nationals most especially refugees and asylum seekers; - A comparative analysis of these legal systems is also vital because in the realm of comparative law, social security systems existing in other countries maybe analysed in order to determine their value to another legal system. Refugee protection is about the universal safeguarding of a certain level of human rights.

Footer4 INTERNATIONAL LAW PROTECTION United Nation Convention Relating to the Status of Refugees 1951 accord lawfully recognised refugees same treatment as citizens on social security protection (Article 23). SA acceded in 1996 and therefore bound. Universal Declaration of Human Rights 1948 provides that everyone, as a member of a society, has the right to social security through national effort and international cooperation. (Article 22) Convention governing the specific aspects of refugee problems in Africa 1969 recognised the increasing numbers of refugees in Africa and desirous of finding ways and means of alleviating their misery and suffering as well as providing them with a better life and future through humanitarian approach (preamble)

Footer5 INTERNATIONAL LAW PROTECTION (CONT’D) International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 recognised the right of everyone to social security; including social insurance (Article 9) (SA signed in 1994 but has not ratified) Refugee Qualification and Protection Directive 2004/83/EC provides minimum standards for third country nationals and stateless persons requiring international protection in all member states.(Article 28). Though not binding law, UNHCR ExCom Conclusion No. 93 recognised an obligation on states to safeguard the welfare of the asylum seekers, including food, clothing, accommodation, and medical care. The UDHR and the ICESCR together are known as the International Bill of Human Rights because they form the foundation of international human rights law and confer the great majority of rights they enumerate to everyone without discrimination.

Footer6 SOCIAL SECURITY ENTITLEMENT OF REFUGEEES AND ASYLUM SEEKERS IN SOUTH AFRICA Constitution 108 of 1996 in its provisions clearly and unambiguously commits the state to develop a comprehensive social security system. It affirms the universal right to social security, including appropriate social assistance for those unable to support themselves and their dependants (Section 27(1)(C)) Exclusion of refugees and asylum seekers from the ambit of social protection (core social assistance) will certainly not pass constitutional muster. Refugee Act of 1998 provides that a refugee enjoys full legal protection, which includes the rights set out in the Bill of Rights of the South African Constitution, and is entitled to seek employment and to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time. (Chapter 5, Article 27(a-g))

Footer7 SOCIAL SECURITY ENTITLEMENT OF REFUGEEES AND ASYLUM SEEKERS IN SOUTH AFRICA CONT’D Social Assistance Act of 2004, Section 5 restrict benefits to citizens only. Challenged in the Khosa Judgment to include permanent residents. Incompatible with the Refugee Act. Scalabrini Centre of Cape Town, the Coordinating Body of Refugee Communities and four disable refugees, represented by Lawyers for Human Rights are contending against the unconstitutionality of the Social Assistance Act because it disqualified disabled refugees from getting disability grants. (Judgment still pending in the Pretoria High court) SCA in Watchenuka case (2003) upheld the original decision requiring the lifting of the prohibition for asylum seekers on work and study. The Standing Committee on Refugee Affairs issued a directive giving effect to the decision in March 2004.

Footer8 SOCIAL SECURITY ENTITLEMENT OF REFUGEEES AND ASYLUM SEEKERS IN SOUTH AFRICA CONT’D Asylum-seekers (i.e. those whose refugee status has not yet been confirmed by the authorities) presently enjoy no formal social assistance support in South Africa. Important contributions by humanitarian organisations (Lawyers for Human Rights, Jesuit Refugee Society etc) cannot be understated.

Footer9 SOCIAL SECURITY ENTITLEMENT OF REFUGEEES AND ASYLUM SEEKERS IN GERMANY Social security law in Germany is codified in one social security Codex, the Sozialgesetzbuch. Article 1 of the general section sets out the general objectives of the Codex. These are to guarantee human existence, to protect family life and to create equal conditions for everyone. Social assistance (Sozialhilfe) provides a last safety net to protect people from poverty, social exclusion and hardship. Social assistance is provided so that everyone entitled to it can live in human dignity and covers the minimum needed to maintain a socially acceptable living standard. A separate law has been passed over the years for specific groups.

Footer10 SOCIAL SECURITY ENTITLEMENT OF REFUGEEES AND ASYLUM SEEKERS IN GERMANY CONT’D Social assistance can be granted to anyone staying in Germany, financial support on a subsistence level and assistance in case of special circumstances. Only German citizens and migrants treated as German citizens (recognised refugees and EU citizens) are entitled to full social assistance. Refugees have the same claim to social allowance and child benefits as nationals. As per the ‘Asylum seeker service law’ (Asylbewerberleistungsgesetz), asylum seekers are entitled to support in kind or in the form of vouchers for the necessities of life (food, housing, clothing, health care, etc.). Medical treatment in case of emergency and pregnancy is also granted. According to the Sachleistungsprinzip, social aid of 207 euros a month per adult is given to asylum seekers in kind and not in cash.

Footer11 SOCIAL SECURITY ENTITLEMENT OF REFUGEEES AND ASYLUM SEEKERS IN GERMANY CONT’D Anyone with children who live in Germany can claim child benefit. Foreign citizens are also entitled, as long as they have a valid right of residence or residence permit. Federal Child Benefit Act (Bundeskindergeldgesetz). Foreigners formally recognised as entitled to asylum and refugees enjoy unrestricted access to education, occupation and work. There exist a social court that deals exclusively with social matters. Proceedings are free of charge to insured persons in the statutory insurance system, assistance recipients and disabled people. Complainants not in any of these groups must pay a flat rate fee.

Footer12 COMPARING THE SOCIAL SECURITY PROTECTION OF REFUGEES AND ASYLUM SEEKERS IN GERMANY AND SOUTH AFRICA In Germany, refugees enjoy same social protection as nationals which the 1998 Refugee Act of South Africa provide and implementation remains to be seen. Germany provide asylum seekers with financial support on a subsistence level and assistance to the value of 207 Euros a month which is unfounded in South Africa. The both systems however provide emergency healthcare, the right to work and study to asylum seekers. A specialised social court or tribunal as that in Germany can actually in the SA context make valuable judgments extending social protection to refugees and asylum seekers. separate legislation on social protection of refugees and asylum seekers should be enacted and clearly define their rights. Germany has a universal grant system which is still to be realised in South Africa.

Footer13 CONCLUSIONS It is a well axiomatic fact that refugees and asylum seekers are in a helpless and deplorable condition and are unable to provide for themselves. For this reason, they are unable to afford the basic necessities of life and therefore require social security protection. The situation of refugees and asylum seekers deserved utmost attention and ways of ameliorating their condition. A decision on which course to take should be a matter of priority. What is at stake is the preparation for such persons for life in society and this is relevant for all persons in that position. Their situation becomes more difficult and onerous by delay in addressing their problem. The lofty ideals set out in our law and policy become "hypocritical nonsense" if they are not translated into action Where is the spirit of Ubuntu?

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