What does the law say about migrants and refugees accessing healthcare in South Africa?

Refugees, migrants and health care in South Africa, explained

Explainer Card

What does the law say about migrants and refugees accessing healthcare in South Africa?

There are different national laws and policies in South Africa that map out who is able to access health care, and who must pay for these services. The Johannesburg Migrant Health Forum has developed a useful, printable poster on this topic to help you navigate your rights.

Constitution of South Africa

The rights set out in the Constitution of South Africa provide for all people within South Africa, regardless of their nationality or legal status. This fact has been confirmed by South African courts. The Constitution states that:

  • everyone has the right to have access to health care services, and
  • ‘no one’ may be refused emergency medical treatment.1

The National Health Act

The National Health Act confirms that:

  • All persons in South Africa can access primary health care at clinics and community health centers.2
  • All pregnant or breastfeeding women and children under the age of six are entitled to health care services at any level.3

The Refugees Act of South Africa

The Refugees Act sets out rights for asylum-seekers and refugees in South Africa. It states that:

  • Refugees in South Africa have the same right to access healthcare as South African citizens.4 This right is widely interpreted to include asylum-seekers, as well.

Department of Health 2007 Circular

This circular confirmed that:

  • Refugees and asylum seekers, with or without permits, can access the same basic health care services as South African citizens (which means it is free at point of use, but can be charged thereafter), and
  • Refugees and asylum seekers, with or without permits, can access Antiretroviral Treatment in cases of HIV.

This does not mean that all services are free. Primary healthcare services are provided free of charge, but higher levels of care are subject to a fee. In these cases, refugees and asylum seekers are subject to a means-test, which calculates the fee depending on the patient’s income. This is the same test that is applied to South African citizens.

A note on the Immigration Act

As we’ve seen, the Constitution, the National Health Act and the Refugees Act spell out refugees and migrants’ rights to access health care. The Immigration Act is quite different, however. It states that staff at clinics and hospitals must find out the legal status of patients before providing care (except in an emergency).

The Immigration Act goes further to say that hospitals and clinics (along with other state institutions) ‘shall report to the Director-General [of Home Affairs] any illegal foreigner’ or anyone whose status is not clear.5 However, this can only be enacted if this does not affect the patients’ rights that are set out in the laws that we have listed above – the Constitution, National Health Act and Refugees Act.

In our opinion, it is not justifiable to expect nurses and doctors to report people they suspect as ‘illegal foreigners’ to the Department of Home Affairs. This aspect of the Immigration Act is at odds with other, overarching laws in South Africa. It is also at odds with a widely-held international opinion that views healthcare facilities as ‘safe spaces’ – a message promoted by organisations such as Medicins Sans Frontieres.

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