South Africa is one of the largest refugee receiver states of asylum seekers and refugees on the continent.
In terms of section 3 of the Refugees Act 130 of 1998 (as Amended), a refugee is, among others, someone who has fled their country of origin on account of a “well-founded fear of persecution”, or “a dependant of such an individual”.
Many such dependants are children, and in South Africa, their rights are protected in section 28(2) of the Constitution, where it states that “the best interests of the child are of paramount importance in every matter concerning the child.”
The Refugees Act provides that refugees and asylum seekers are entitled to work and study within the Republic, but all too often their right to basic education, which is also set forth in section 29 of the Constitution, is not realised.
Schooling is perhaps one of the most fundamental rights as it “unlocks” other entitlements.
If children are going to school, it gives them a sense of dignity. It also stands them in better stead to secure employment after their studies.
This will, in turn, make it easier for them to take care of their families as they get older. It is also a deterrent against child labour.
That many asylum and refugee children are out of school means that they get caught in poverty traps, and live and die in poverty.
The right to basic education is entrenched firmly in international law, in treaties such as the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and the International Covenant on Social, Cultural and Economic Rights.
All these treaties guarantee this right to everyone, regardless of nationality.
One recalls UN Special Rapporteur Tomasevski’s 4-A framework in discussions about education.
That is, education must be available, acceptable, accessible and adaptable.
It is not simply a matter of four walls housing learners for half a day, it is about creating a supportive environment that promotes tolerance and understanding of learners who come from different places and have different cultures and religions.
This is particularly important, given that refugee and asylum-seeker learners may need remedial teaching, owing to a language barrier or their having been out of school for a substantial time. Perhaps they and their families have had to travel long distances to come to South Africa.
In the absence of a supportive environment, one is likely to encounter xenophobia in or outside the classroom. There are also learners with disabilities who might be refugees or asylum-seekers.
The learning environment must be able to adapt to this.
Locally, there have also been many developments.
In the case of Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13, the court held that education is an immediately enforceable right that should be available to everyone.
While refugee and asylum-seeker children were not specifically mentioned in the judgment, the nature of the right to basic education is clear. There should be no waiting period and no discrimination against children who need access to education.
In Centre for Child Law and Others v Minister of Basic Education and Others (2840/2017) [2019] ZAECGHC 126; [2020] the plaintiffs embarked on a process of strategic litigation to address the problem of refugee, asylum seeker and other migrant children being excluded from school.
The court held that no child may be denied basic education because of documentation status.
Similarly, in Centre for Child Law and 37 Children v Minister of Basic Education and Others CCT 19/19, the Constitutional Court confirmed that children of undocumented parents must be able to access education while their parents address their documentation-related issues.
This legal precedent was intended to constitute lasting relief for such learners. Despite this, many children remained excluded from school, unable to write matric without a barcoded ID and unable to access school reports, among other challenges.
Legal intervention from non-governmental organisations was required to assist such children.
At the end of 2024, the National Department of Education issued a circular which stated that no child may be excluded from school on the basis of their documentation status.
This is aligned to the two Centre for Child Law’s cases, but also harks back to the 2008 case of S v M (Centre for Child Law as Amicus Curiae) 2008 ZACC 18 2008 (3) SA 232 (CC); 2017 (12); where the court held that children should not be “umbilically destined to sink or swim with… [their parents]”
In this context, it relates to the fact that just because parents do not have proper documentation does not mean that the consequences of this should be visited upon their children.
Refugees and asylum-seekers come to South Africa in search of a better life for their families.
It is a shame that it is not provided in a comparatively democratic country such as this.
Laws, policy and legal precedent mean nothing if they are not implemented.
Let refugee and asylum-seeker children’s rights be more than a simple paper trail.
[Image: https://www.flickr.com/photos/unicefethiopia/8293913034]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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