Rights of foreign kids trampled on

Source: SA Migration, 26/02/2018

Children �` South African, from other countries and stateless �` face
being kicked out of the classroom, despite having a constitutional
right to education and it being compulsory for all children to go to
school.
The department of home affairs, under both its previous and new
ministers, is not resolving the contradictions and schools are
trapped by the department of education’s funding model that excludes
children without the proper documentation.
Still fresh in our memories is the debacle at Eastleigh Primary
School in Edenvale, Gauteng, in February. The school sent a letter
advising “all foreign parents” that if they did not have up-to-date
documentation for their children when they brought them to the school
the following week, their children would be reported to the police.
The letter threatened: “If any foreign child arrives here on Monday
we will phone the police to come and collect your child, and you can
collect your child at the police station.”
The department of home affairs, through Twitter, said it had not
advised the school to hand over pupils to the police if they were not
properly documented.
Yet the department has also told civil society groups that it is
empowered to hold a school’s principal accountable if pupils were
undocumented and that this may result in a hefty fine.
That the school’s threat, addressed to “all foreign parents”, should
happen at all is morally and constitutionally unacceptable. That it
happens in the context of a society struggling to combat xenophobia
and xenophobic violence is dangerously irresponsible.
“Xenophobia has been, and continues to be, a significant issue of
societal injustice, and has led to widespread violence and
displacement. The singling out of foreign nationals, and the
imposition of unlawful and unreasonable threats to their fundamental
right to education, is an irresponsible flaming of this fire and a
poor example for educators to set for learners,” the Equal Education
Law Centre said in its letter to Eastleigh.
Prior to the Eastleigh incident, several public-interest law centres
worked for numerous clients whose children faced discrimination or
exclusion from schools because of their nationality or lack of
documentation.
The Equal Education Law Centre, the Legal Resources Centre, the
Centre for Child Law, Section27 and Lawyers for Human Rights wrote to
the departments of education and home affairs in March, requesting a
meeting to discuss the best way to balance immigration regulation
with the rights of all people in the country.
The letter emphasised the departments’ constitutional duties to
protect the interests of all children in South Africa; the right to
basic education is protected in section 29 of the Constitution.
“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.”
Having received no response and with a new minister of home affairs
in place following the president’s Cabinet reshuffle, we addressed a
follow-up letter to the departments on May 2. Again, we received no
response.
It is not only foreign schoolchildren who face this discrimination.
Many South African parents who are not documented get turned away
from schools for not being able to verify their status in South
Africa. Children end up idle at home �` often unsupervised �` and
without education.
Our organisations have intervened on behalf of children who are of
compulsory schoolgoing age but have been outside the education system
for up to two years. The children are prejudiced not only in those
years, but in trying to catch up once they are finally placed.
In some of our cases, schools have been willing to extend the period
for allowing the parents to regularise their status in South Africa
but in other cases there has been less success.
Schools should not be vilified for this situation. Some, already
stretched and penniless, cannot accept undocumented pupils if they
will not receive state funds for them.
This is the case in the Eastern Cape, where the department of
education has informed schools that no funding will be given to them
for children without adequate documentation.
With the department refusing to revise its position, this decision is
now the subject of a court review launched by the Legal Resources
Centre on behalf of the Centre for Child Law in the Eastern Cape High
Court.
Many poor families, both immigrant and not, are unable to afford the
services of lawyers. Although we have been successful in finding
placement at schools for many undocumented children, the systemic
problem remains. It is not just education that is at stake, but the
battle against the xenophobic undercurrents in our society. With this
in mind, the need for civil society and the state to find solutions
is more pressing than ever.
Child protection and advancement is at the forefront of our entire
legal system. Rigid legislation and directives that threaten to limit
that protection cannot be acceptable. National and provincial
education departments will need to talk to each other, and to the
department of home affairs, towards constitutionally sound solutions.
Nurina Ally is executive director of the Equal Education Law Centre
and Kelly Kropman is an attorney at the Legal Resources Centre