Human rights lawyers issue directive to schools about undocumented children

Source: THE TIMES, 02/02/2017

Human rights lawyers are urging 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 charging higher fees. The directive should also
indicate that schools have a responsibility to help children obtain
documents‚ Lawyers for Human Rights‚ the Centre for Child Law and
Equal Education Law Centre said in a joint statement.


An Edenvale school governing body threatened to take immigrant pupils
to the police â€" laywers declare ‘children are always entitled to their
rights’


This comes after an Edenvale‚ Ekurhuleni‚ school governing body issued
a letter last week that threatened to take immigrant pupils without
valid paperwork to the police. Following outrage on social media‚ the
governing body called the letter "unfortunate" and said it
"unreservedly" apologised for any hurt the letter may have caused.
The human rights lawyers said that although the school has retracted
the letter‚ "unfortunately the Eastleigh school incident is not an
isolated event".


"At the beginning of each school year‚ and particularly in 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."


They spelt out the rights of children in this situation:
• Children are never to be detained for immigration purposes. This is
an absolute right.


• All children in SA 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.


• South African 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 their own
status or that of their parents. The Constitution protects the right
to education‚ the right to equality‚ and the right to dignity of all
people in SA. 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 in obtaining
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.


The lawyers commented: "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."


The lawyers said they have also encountered unlawful refusals of
admissions for children without birth certificates. This was despite
the fact that some children cannot obtain birth certificates‚ because
the Births and Deaths Registrations Act makes it impossible for
certificates to be obtained by children of single fathers where the
mother is missing or undocumented‚ children in child-headed households
and children in the care of guardians where the parents are alive, as
well as 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," the lawyers said. "It is simply not constitutionally
permissible for the department 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."


The lawyers requested that the department 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 SA."


It also urged the department to amend laws to eliminate
unconstitutional exclusions from birth registrations where children
were born in SA 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".


The Department of Social Development was also asked 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.


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