Ajwang’ Warria, Mosangoaneng Leteane, Margie Roper, Marcel van der Watt, Susan Marx and Cyndirela Chadambuka are researchers on a national counter-trafficking study in South Africa.

Forced migrants who have fled their countries because of conflict, persecution, climatic changes and environmental hazards, instability and violence, now find themselves having to confront additional challenges brought about by Covid-19 in South Africa. The efforts put in place to flatten the curve of infections and save lives must include everyone living in South Africa – including transnational migrants and those on the margins of the society. This is because the coronavirus does not discriminate and it has left few places untouched. 

Any person can be infected with Covid-19 and become seriously ill or even die. Thus, as reported by Franzisca Zanker and Khangelani Moyo, the “virus does not distinguish according to passport or citizenship”. Since the pandemic began, it has been observed in South Africa and in other countries that the virus does not know any boundaries and is not dictated to by geographical borders, stage of development, class, status, race, ethnicity, gender identity and/or sexual orientation. 

What has also been evident is that Covid-19 does not affect all populations equally. It seems that the impact of Covid-19 is more severe for populations that were at risk before the pandemic and where pre-existing inequalities and unequal societal structures existed. These increased risks and concerns are often associated with irregular migrants, those with precarious livelihoods or employed in the informal economy, stateless people, victims of trafficking, refugees and asylum seekers. 

In South Africa, and elsewhere, we must remember that migrants (both internal and cross-border) are often the ones who are at the forefront of the pandemic as providers of essential services in health, cleaning, security, domestic work and agriculture.

In many countries, national responses to Covid-19 have been harsh against vulnerable populations including migrants and refugees. A majority of these actions have not been consistent with established international human rights standards. However, there are notable exceptions of these populations in the programmes that have been designed and implemented by some governments to secure the wellbeing of their citizens.

For example, in Colombia, the government is offering migrants temporary protection status for 10 years which would then allow them access to healthcare services and Covid-19 vaccinations. In South Africa, some asylum seekers and special-permit holders were able to apply for the Covid-19 Social Relief of Distress grant, and asylum seeker permits or refugee status that expired during lockdown were extended until 30 June 2021.

International human rights laws bind countries to provide healthcare services to any individual residing within the borders of the country. This means that documented or undocumented migrants in any country that are signatory to these conventions have the right to proper healthcare services without prejudice or discrimination.

In 2021, the United Nations theme for the World Refugee Day calls for collaboration. As we honour refugees in South Africa and around the globe, the theme “together we heal, learn and shine” marks the 70th anniversary since the United Nations adopted its Convention for Refugees in 1951.

In South Africa, cases such as the Minister of Home Affairs and Others v Jose and Another (169/2020) [2020] ZASCA 152 and Scalabrini Centre of Cape Town and Another v Minister of Social Development and Others (22808/2020) [2020] ZAGPPHC 308, are poignant reminders of how migrants’ legal status can affect their access to services. 

Joseph and Junior’s (Min Home Affairs v Jose and Another) ordeal resembles that of many stateless minor children born to foreign nationals in South Africa. Born in the 1990s, their parents were Angolan refugees who were granted asylum status until 2014. In terms of section 4(3) of the South African Citizenship Act 88 of 1995 (the Citizenship Act), the two minors met the requirements for citizenship. 

The high court ruled in their favour and the judge ordered the Department of Home Affairs (DHA) to grant them citizenship in terms of section 4(3) of the Citizens Act. The DHA’s main contention at the Supreme Court of Appeal was whether it was “competent in the particular circumstances of the case to order the Minister to grant (as opposed to consider) the respondents’ applications for citizenship”. 

The beckoning question is thus: can the courts intervene and give instructions to the government without compromising the separation of power? This has been a recurring question for the courts since the numerous legal changes under the Disaster Management Act (No 57 of 2002) warranted by Covid-19.

In June 2020, the minister of social development had to revise the criteria for the Covid-19 relief grant. Initially, it excluded asylum seekers and special permit holders from receiving assistance. The court agreed with the applicants and found that exclusion was “unlawful, unconstitutional, and invalid to the extent that it excluded special permit holders and asylum seekers whose permits or visas (as the case may be) were valid”. 

Deprivation and limited access to assistance provision is one of the biggest challenges of being stateless or denied asylum status. It keeps displaced individuals in a vicious cycle of vulnerability, abuse, exploitation and of trafficking. Citizenship or granting protective status to displaced persons allows the country to protect the individual, while creating a conversant database in the event of a disaster or resettlement.

Under ordinary circumstances, South Africa’s migration and citizenship policies observe protocol and separation of powers. The legislative process allows for consultation with non-government organisations, different sectors of societies and branches of government. In a pandemic, this is not always possible as a separation of power could potentially result in a migrant being further separated from socio-legal recognition and assistance. 

In an urgent effort to avoid further delays and exclusions, judges and civil society organisations may need to innovate their roles as advocates for different categories of migrant populations in court. 

Human mobility and human rights in the Covid-19 pandemic: Principles for protection for migrants, refugees and other displaced persons is a document that highlights 14 principles grounded in international human rights law and it calls for countries globally to promote and uphold these principles during the pandemic.

If migrants are not factored in Covid-19 management plans, countries run the risk of not appropriately managing the pandemic. However, it is acknowledged that though the recommendation on equity in vaccine, testing and treatment access is being made, South Africa and other migrant-hosting countries are struggling with a crisis of care – in other words with their own resource and services provision challenges exacerbated by the pandemic. 

A securitised and xenophobic agenda calling for construction of border walls to stop Covid-19 will not assist in the pandemic management and it has a past history linked to the apartheid era in South Africa. What this does is to deflect the core debates and take away essential resources that could be used for measures to address Covid-19 in the country.

No one is safe until everyone is safe. Thus, an inclusive approach in Covid-19 management in South Africa is required. In harnessing the spirit of ubuntu, our individual and collective wellbeing is precariously interconnected. 

Migrants are part of the solution. From a long-term view, the inclusion of migrants in the national Covid-19 policy, advocacy and practice responses can assist towards the realisation of social justice and equality.

The cases cited above reveal that this inclusion process is still very much progressive. It is intricate and collaborative. Given the harsh realities of Covid-19, it requires that the different government departments and society hold each other to a higher standard of accountability, and thus humanity. DM

This work is made possible through support from USAID and the South African Department of Science and Innovation (DSI), as a supplement to a USAID Cooperative Agreement #7200AA18CA00009 (LASER-PULSE) to Purdue University. Contents reflect the views of the authors and do not necessarily reflect those of USAID or DSI.