Media Statement: South African Human Rights Commission Releases Final Position Paper on Access to a Basic Education for Undocumented Learners

Source: Human Rights Commission, 11/10/2019

This phenomenon, which affects South African children whose birth
has not been or cannot be registered, stateless children, as well
as migrant children in an irregular situation, results in some of
the most vulnerable children in our society remaining virtually
invisible and exposed to a multitude of dangers. The current
policies, the SAHRC has found, unfairly punish the child and
hinders their development at what is likely to be a crucial time
in their life.
The practice of requiring documentation as a condition for
enrolment and access to basic education runs contrary to the
spirit and values espoused in the Constitution, and directly
violates the obligations of the State in terms of international
and domestic human rights standards. While the SAHRC notes that
the right to a basic education as contained in section 29(1) of
the Constitution is not absolute, given its far reaching
implications, any limitation of the right would need to meet a
high threshold in order to pass the test of being reasonable and
justifiable.
The SAHRC notes that a number of efforts have been made by various
state departments with a view of addressing the issues, but
remains concerned that existing policies and processes are
insufficient to adequately safeguard fundamental rights. In line
with its Constitutional mandate to review government policies and
make recommendations to the State, the SAHRC has developed a
Position Paper with a view of providing guidance on bringing our
practice and legal framework in line with the Bill of Rights and
international obligations.
The Paper, which makes findings and recommendations on access to
school; funding policies; and immigration control can be accessed
on its website at the following link:
https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20Paper%20
on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Le
arners%20in%20South%20Africa%20-%2012092019.pdf
The issues dealt with in the Position Paper will be heard before
the Grahamstown High Court in the matter of Centre for Child Law
and 25 others v Minister of Basic Education and 4 others on 18 and
19 September 2019, which matter is anticipated to establish
ground-breaking jurisprudence on the right to a basic education
and the rights of undocumented persons in South Africa. Members of
the media are encouraged to attend the proceedings.
www.samigration.com