The Protection of the Right to Healthcare of Illegal Immigrants in South Africa

Abstract

South Africa is experiencing a rising number of illegal immigrants, especially from the neighbouring countries, who come into the country for several reasons, such as seeking socio-economic ends, studies, and seeking new livelihood opportunities. Incidental to this migration subject is the fact that some immigrants enter the Republic in violation of immigration laws or reside in the Republic without obtaining a legal stay. The Constitution entails a Bill of Rights which guarantees the protection of several fundamental rights to everyone. Some of these rights have been extended to illegal immigrants, as evident in the Discovery Health v CCMA case, where the Court interpreted rights to fair labour practices for the protection of illegal immigrant workers. The study looked at the extent of illegal immigrants' right to health care in South Africa according to the existing legal framework. The study adopts a desk-based doctrinal methodology to effectively analyse the legal basis for providing healthcare to illegal immigrants in South Africa, incorporating primary and secondary sources of law such as case laws, journal articles, statutes, international laws, and other pertinent sources. The study concludes that the right of illegal immigrants to health is undermined on the basis of their immigration status, a position contrary to international and regional jurisprudence. The study recommends for the extensive policy review and amendments, courts' extensive engagement with the content of the right to health and eventual endowment of the right to health with a jus cogens status as it is an innate minimum core standard to the right to life and dignity.