/ 9 December 2022

The children of asylum seekers in South Africa have a right to education

Ithemba School 6554
Discrimination: South Africa has not created an enabling environment, which results in the children of asylum seekers and refugees struggling to be admitted to schools, as is their right. (Delwyn Verasamy/M&G)

On average, South Africa receives about 63 339 asylum seeker applications every year. But the government has done little to afford both asylum seekers and refugees with protection and social security in the form of effective protection from violent attacks and access to shelter, social grants, job security, basic financial services and government-funded social welfare programmes. 

Despite South Africa’s Refugees Act acknowledging the vulnerabilities of asylum seekers and refugees who are seeking refuge from persecution, human rights violations and other justifiable reasons, the government continues to make it difficult for them to have basic services. 

Asylum seekers tend to fall prey to human trafficking because of the preliminary nature of their settlement into the country. They are also vulnerable to labour exploitation (for example, sweat shops and cheap labour), sexual abuse in shelters and citizenship scams, among others. 

The process of getting asylum is not straightforward, resulting in exposure to racism, xenophobia and blatant discrimination. 

The government has failed to create enabling resources and opportunities for something as essential as basic education for children. They have been discriminated against despite the legislative framework, which provides for equal and inclusive education. 

Barriers are created by poor migration policy, ineffective policy implementation, poor documentation and institutional problems such as discrimination at schools and home affairs department’s ineffective asylum and refugee processing system.

This can negatively affect the development of children that need to go to school and the progress of asylum seekers who depend on completing school to obtain a job for household income. 

Furthermore, the government has done little to minimise limitations to education for asylum seekers, including the lack of enabling legal documentation, the inability to afford fees and costs affiliated with getting an education, language barriers and successfully meeting the school admission policy requirements.

The story of Esther Nkulu is one of many stories of children who have been highly affected by South Africa’s poor migration policy. Esther has been living in South Africa for 12 years now under an asylum seeker permit. She has had to go as far as starting a petition to ask the home affairs department to do something. 

“I tried so many places but I am rejected … Help me bring awareness to how the lack of proper documentations puts so many restrictions on the lives of the youth, the leaders of tomorrow. All I yearn for is to continue my education. It’s been 12 years now and I’m still given an asylum seeker permit of which is difficult to get bursaries or scholarships with. 

“My mother is unemployed and she cannot even afford the registration fee required by the university.”

The legal position both in domestic and international law is very clear about education for asylum seekers. 

First, the right to education is a clear universal human right in terms of the Universal Declaration of Human Rights. 

Second, although the Convention Relating to the Status of Refugees is not direct about the right to education of asylum seekers, article 22 outlines that refugees have a right to access basic education. 

Third, the African Union Refugee Convention feeds off the provisions of the African Charter on Human and Peoples’ Rights in which every individual is entitled to education. Last, according to article 13(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), member states have the obligation to realise the right to education to enable individuals to effectively participate in a “free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups”. 

South Africa, together with other member states of the ICESCR, have three main obligations under the right to education. First, member states are obliged to respect the right to education through the avoidance of any measures that hinder or prevent the enjoyment of accessing education. For example, in South Africa, the strict admission policies can be relaxed in the case of asylum seekers. 

Second, member states must protect asylum seekers through measures that prevent third parties from interfering with the enjoyment of the right to education. Third, member states must fulfil the right to education by taking active steps to enable and assist individuals and communities.

Member states are expected to observe other specific obligations. First, to make sufficient educational institutions and facilities available. 

Second, to ensure accessibility to educational institutions to everyone without discrimination. Third, to ensure that the form and substance of the education is acceptable to both students and parents. 

Fourth, the nature of the education afforded needs to be adaptable to the changing needs of society, especially in the context of the needs of students within their diverse social and cultural settings. 

Fifth, in terms of articles 13(2) and 14 of the ICESCR, member states are obliged and have an immediate duty to prioritise the possible integration of compulsory free primary education. 

Sixth, in the case of secondary, higher and fundamental education, member states have the obligation to take reasonable steps to realise education and to ensure an educational fellowship system. 

Last, in both articles 13(3) and (4) member states are required to establish “minimum educational standards” for which educational institutions are established. 

Article 13 of the ICESCR does acknowledge the fact that the right to education is a progressive right. But this does not empower South Africa to discriminate against asylum seekers in relation to education because that would not be permissible in terms of article 1 of the Convention against Discrimination in Education.

The legal context of South Africa at a national level is that everyone has the right to basic education in terms of section 29(1)(a) of the Constitution and section 9C(1)(b) of the Refugee Act, which allows for the permission of study by asylum seekers at the discretion of the officer granting asylum visas. 

The supreme court of appeal in the case of Minister of Home Af fairs v Watchenuka held that asylum seekers are granted the right to study in South Africa pending the outcome of their application for asylum.

The right to education is regarded as an empowerment right because of its ability to enable marginalised people to fully participate in their communities and to elevate their social and economic circumstances to get out of poverty. 

Education is one of the best investments that South Africa can make because of its ability to reduce labour and sexual exploitation and human rights violations and because it contributes to the upholding of democracy. Being a democratic country and a member to all of these conventions, it is in South Africa’s best interest to effectively realise the right to education of asylum seekers and refugees. 

While the government is not taking adequate action, civil society and other non-state actors such as corporations through their corporate social investment programmes need be part of a coordinated effort to ensure education for refugees and asylum seekers. 

South Africa ought to create an environment in which every child deserves and gets an education, regardless of the legality of their parents and themselves in South Africa.

Karabo Mokgonyana is a legal and development practitioner and programme director for the Sesi Fellowship and Skill Hub.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.