Last November, we commented in the Mail & Guardian on the contradictory laws in South Africa that discriminate against children of immigrants. There are now signs of change, with a letter issued to the African Diaspora Forum (ADF) from the minister of basic education, Angie Motshekga, announcing that “as an interim measure” the department will “ensure that no learner without proper documentation is refused admission to a public school” and has developed a circular for the provinces directing that “all learners, irrespective of their citizenship status, should not be denied admission to any public school”.
This move is something we have been pushing for since the launch of our latest report on migration, displacement and education. Building Bridges, Not Walls looks at practices that help or obstruct migrants and those forcibly displaced to fulfil their right to education. These range from countries that have made choices to overlook paperwork, financial implications and politics to open school doors, to countries that outright excluded them.
The reason so many are celebrating the recent letter sent by the ministry to the ADF is because of a lack of clarity about immigrants’ education rights in South Africa.
Although the education of children of immigrants is protected in the Bill of Rights, it is labelled an offence in the Immigration Act. This has left principals to take it upon themselves to allow undocumented children to attend their classes, subject to being fined or even imprisoned at the most extreme.
We are not entirely sure what has tipped the balance and led to this letter being sent. Perhaps it was the litigation, led by the Centre for Child Law, in December calling for 37 undocumented children to be admitted to school. This case was dismissed at the time, but two months later the Constitutional Court overturned that dismissal, changing the lives of those children forever. Now a case is pending in the high court to decide once and for all whether children without paperwork will be able to enrol at schools.
Perhaps it was the global spotlight put on migrants’ rights at the signing of the Global Compact on Safe, Orderly and Regular Migration in December or the publication of global reports, such as our son their education rights, that also helped.
But a far more important question mark hangs over whether this letter is reassuring enough for the children concerned. The chairperson of the ADF himself cautioned about the letter, saying: “Implementing this means monitoring and ensuring that prejudices of officers in schools do not continue to hound learners.” Don’t forget that schools do not receive funds for teaching undocumented students.
Leaving the power of admission in principals’ hands may not, therefore, be a risk-free option.
Our report showed multiple cases of discrimination in schools, from Ghana to China and from Chile to Hungary, acting as a further barrier to migrants’ education. It showed that long-past legacies of restrictions on access to education for migrants can remain alive and well among principals and teachers.
Assuming central orders are immediately implemented at the school gates would be naive, especially when the exact nature of this letter sent to the ADF is unclear and the extent to which it overrides the Immigration Act is uncertain. What the department of home affairs will make of the change is also not known yet.
Many families will feel a lot of hope about this letter and what it means for their children’s future. We hope that it will develop into a circular fully ensuring the rights of undocumented children to go to school pending the outcome of the case in the high court. These children should not have to leave their right to education behind them when they move to a different country.