01 March 2017

On 22 February 2017 Eastleigh Primary School in Edenvale, Gauteng, issued a letter to all foreign parents threatening to refuse their children access to education and to have children arrested if their papers are not in order.

Although the school has retracted the letter, it is important, particularly amidst xenophobic marches and increasing school admission refusals, to shed light on the rights of migrant and/or undocumented learners and the unacceptable violation of those rights in South Africa.

Unfortunately the Eastleigh school incident is not an isolated event. At the beginning of each school year, particularly 2017, we receive reports of children being denied admission to school. These include not only undocumented migrant children, but also documented refugee and asylum seeker children and undocumented South African children. Whatever their status or level of documentation, children are always entitled to their rights.

What are the rights of children in this situation?

  • Firstly, children are never to be detained for immigration purposes. This is an absolute right.
  • Secondly, all children in South Africa are equally entitled to education regardless of their status or documentation. The Schools Act prohibits discrimination of any form when it comes to admission to school.
  • Our courts have found that the right to study is inherent in the right to dignity and that this right cannot be bound to one’s nationality. No child may be discriminated against based on his/her own status or that of his/her parents. The Constitution protects the right to education, the right to equality, and the right to dignity of all people in South Africa. This includes those without documents or citizenship. This is particularly true when it comes to children.
  • The Constitution states that the best interest of the child is of paramount importance when dealing with children. The National Education Policy requires schools to assist the child to obtain documentation where there is none. The burden to comply with documentation requirements is shared between parents and the school. Where the child is part of a child-headed household or an unaccompanied child this burden is shared by the school and the Department of Social Development. These responsibilities are in place to ensure that nothing prevents a child from going to school. A school cannot merely reject a child for having no papers.

It is important to take into account the various factors which lead to children being left undocumented and to consider that these factors are always out of the child’s control. Refugee and asylum seeker children are entitled (in terms of the Refugees Act) to obtain the same permit as their parent. Yet they often have trouble obtaining or renewing their permits, because of widely reported and widespread corruption the Refugee Reception Offices. We have also encountered unlawful refusals of admissions for children without birth certificates. This is despite the fact that some children cannot obtain birth certificates, because the Births and Deaths Registrations Act makes it impossible to for the following children to obtain certificates:

  • Children of single fathers where the mother is missing or undocumented
  • Children in child headed households
  • Children in the care of guardians where the parents are alive
  • Children of undocumented parents

It is of great concern that the Department of Home Affairs visited Eastleigh in the week prior to the school sending its letter, and appears to have exerted pressure with regard to undocumented learners. It is simply not constitutionally permissible for the Department of Home Affairs to take this approach. While immigration control may be a legitimate government concern and function, it should never be addressed through the violation of children’s rights. No reason whatsoever, including irregular migration, can ever justify harming children through unlawful arrest or the denial of education.

Eastleigh School principal’s actions are a flagrant disregard for her obligations to protect the children entrusted to her care. We noted with concern that the letter of apology from the School Governing Body contains an implicit threat relating to the need for learners to be document, when it reads “we urge all parents whose documents are not in order to please work with the school to regularise these matters so that the education of their children will continue harmoniously” [our emphasis]. While it is encouraging that the school has realised the unlawfulness of its threat and offered to support parents through documentation processes, the school has no right to imply that the harmonious education of their children ought to be at stake.

We urge the Department of Home Affairs to:

  • Issue a directive to all schools clarifying the correct legal principles. These include that refugee and asylum seeker children are entitled to be admitted to school even while awaiting documentation and do not need study permits to attend school; that school principals will not be arrested or fined for admitting undocumented children as is the rumour; and that undocumented children are allowed to attend school in South Africa.
  • Amend laws to eliminate unconstitutional exclusions from birth registrations where children were born in South Africa or to South African parents and to stop the discriminating practice of requiring expensive DNA tests for people faced with poverty before birth registration will take place.

We urge the Department of Basic Education to:

  • Issue a directive instructing all schools to immediately stop the practice of discriminating against foreign and undocumented children by refusing access and by charging higher fees. The directive should also indicate that schools have a responsibility to assist children to obtain documents.

Lastly, we urge the Department of Social Development to intervene in cases where children are in need of care and protection and where parents are unresponsive in order to assist with the process of obtaining documentation for children.

For comment contact:

  • Lawyers for Human Rights – Liesl Muller at liesl@lhr.org.za and 011 339 1960
  • Centre for Child Law – Karabo Ozah at ozah@up.ac.za and 012 420 4502
  • Equal Education Law   Centre – Daniel  Linde at daniel@eelawcentre.org.za and 021 461 1421/3551