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SA’s contradictory laws discriminate against children of migrants

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People move around the world from one country to another looking for better opportunities. On average, immigrants tend to be more educated than natives. But, in South Africa, although 7% of its population was born abroad, legislation is, in effect, barring the children of some immigrants from enrolling in school.

South Africa’s laws governing access to education by children of immigrants are contradictory, to say the least. On the one hand, the Bill of Rights extends the right to basic education to everyone and the South African Schools Act of 1996 makes it compulsory for every child to attend school from age seven until the pupil reaches age 15, or grade nine, whichever occurs first. But the Immigration Act renders instruction by a learning institution to an “illegal foreigner” an offence.

You might forgive people for being confused about their rights, particularly those from Zimbabwe. Legislation has changed over the years, first requiring parents to apply for specific permits — Zimbabwean Exemption permits — which then became Zimbabwean Special Dispensation Permits, and another round of applications also required parents to ensure their children had study permits or a letter of good cause. Paperwork takes time and that is time these children aren’t in the classroom.

This exclusion is highlighted in Unesco’s new global report on migration, displacement and education. It emphasises that six months may seem like nothing to an administrator, but is a lifetime to a child barred from school. And, if they are accepted into the classroom during this time as illegal immigrants — we found that some schools are taking huge risks in doing so — the school can be charged a fine of R5 000 a child.

Gary, a school principal who cannot be identified, risks such a fine.

“I don’t regard myself as the top guy,” he says. “I’m just passionate about education. In many instances, schools will not allow them in because they’re going by the book. I can’t understand that. The system is letting them down. It is a constitutional right for a child to be educated, but it seems as if home affairs overrides the Constitution.

“If they were not in school, where would they be? They’d be out in the streets; they’d become delinquents. So, having the children in the school — educating them, teaching them values and attitudes — they’ll become better people, and that can one day be beneficial to the country and the economy of the country.”

Titled Building Bridges, Not Walls, the Unesco report shows that the barriers to migrants’ education at the school gates is compounded by some South African teachers’ prejudice against the children of Zimbabwean immigrants. Native students have been cited as taunting immigrants.

This isn’t helped by the fact that school materials are not helping to challenge prejudice. Our report analyses textbooks from around the world and the way that they cover migration. It shows that those in South Africa overlook xenophobic attitudes and discrimination against immigrants from other African countries, despite the fact that the country has immigration rates two to three times higher than the global average, which leads to social complications.

Since our report has gone to print, the Refugee Rights Centre in South Africa has picked up the baton. They think new developments in the form of new regulations on the registration of births and deaths in the country are going to make it even more difficult for the children of immigrants to go to school.

The new regulations propose that the government stops issuing birth certificates to the children of immigrants born in South Africa, but rather only with a “confirmation of birth certificate”. This would mean these children no longer fit the terms in the South Africa Schools Act, which protects their right to an education.

As the Refugee Rights Centre commented: “It serves only to exclude foreign children and deprive them of basic rights. It creates an arbitrary distinction between foreign children and the children of South African citizens. In so far as this change of wording will prejudice any child, it is unconstitutional.”

Conflicting laws and rights treaties reveal an internal tussle over whether the right to education should be for all, and not just for citizens. But why should people have to leave the right to education behind when they move? A lack of identification or residency status shouldn’t stand in the way of a place in a classroom. And teachers shouldn’t have to take it upon themselves to contravene laws to help these children to learn.

Many other countries are leaving exclusionary policies behind them, welcoming and fostering children from other countries in their education systems, celebrating the potential they bring with them and the contribution they bring to society. It’s time South Africa did the same.

Manos Antoninis is the director of the Global Education Monitoring Report produced by Unesco

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