OPINION | Judgment securing undocumented pupils’ rights to education has been eroded

The Basic Education Laws Amendment (Bela) Act, which seeks to amend the Schools Act, poses a serious risk of regression for undocumented pupils’ right to education. Equal Education and the Equal Education Law Centre have made submissions on the bill, which imposes rigorous documentation requirements on children and threatens to refer them to government committees when those documents cannot be provided.

These regressions come in the context of a 2019 judgment, Centre for Child Law and Others v Minister of Basic Education and Others, which ensures that undocumented

Pupils are entitled to a basic education. The landmark judgment was delivered by the Makhanda high court. It unequivocally states “[t]he right to education extends to ‘everyone’ within the boundaries of SA” and that “nationality or immigration status is immaterial”. Importantly, the judgment demonstrated a profound understanding of the inherent vulnerability of children who are undocumented and unable to obtain their birth certificates or permits. For example, in the case of non-national children, they are brought to SA through no choice of their own, exist precariously in situations of irregular migration, and are cut off from essential services such as healthcare, social assistance and, until recently, education. In the case of SA children, who were the group predominantly affected by the laws that excluded undocumented pupils from going to school, they are unable to effect change in the legislative regime that prevents their births from being registered. They are similarly prevented, through no fault of their own, from accessing their basic rights.

Despite the deep understanding of vulnerability within the judgment, it has been blighted by poor implementation since it was handed down. Schools often still turn away pupils for the failure to provide birth certificates and permits. As a result, the organisations that brought the litigation were forced to request that all provinces reissue the circular that was published after the judgment. In fact, implementation has been so poor it has drawn international attention. Last year the UN Committee on Economic, Social and Cultural Rights found SA has not made sufficient progress to ensure access to education for undocumented migrant, refugee, or asylum-seeking pupils.

Considering the heightened vulnerability of undocumented children and the post-judgment implementation difficulties, it seems clear that all departmental efforts should be turnt towards ensuring schools admit undocumented pupils, that awareness of the judgment is enabled and that, in general, any barriers to school access that undocumented pupils face are removed. But instead of gearing all efforts into ensuring compliance, the opposite seems to have occurred.

Since judgment was handed down the education department has introduced far more documentation requirements than those requested pre-judgment. Possible amendments to the National Admission Policy for Public Ordinary Schools were published in early 2021. If they go through, they will require that children supply a stringent set of documents when seeking admission. For instance, a non-national born in SA is requested to provide both the birth certificate obtained in SA as well as the birth certificate obtained from their country’s embassy. The Bela bill is similarly problematic in its documentation requirements. For instance, it requires asylum seekers to provide their asylum seeker permits and, within three years of admission to school, documents reflecting that their asylum claim has been finalised. But the Refugees Act doesn’t state that asylum claims will be finalised within three years, and asylum claims overwhelmingly take longer than that to process. The issue with these sorts of requirements — two birth certificates or documents demonstrating that asylum claims have been finalised — is not only that they are often impossible to obtain, or that schools don’t need them for their administration, but that they seem geared towards immigration control.

For instance, the department of home affairs has long advocated for non-nationals whose children are born in SA to obtain birth certificates from their own countries, in addition to SA-issued birth certificates, so that they understand their children are not SA citizens and do not attempt to settle here on that basis (a misleading strategy since non-national children born in SA can naturalise). On the other hand, ensuring asylum claims are finalised is a way to ensure the claims are fast-tracked and that asylum seekers do not remain in SA for extended periods. These may very well be legitimate concerns for the department of home affairs, but schools are not the place to enforce this. Access to school must always be as barrier-free as possible, and schools must be spaces in which children feel and are safe. While the Amended National Admission Policy and the Bela bill state that if these documents can’t be provided the child must still be admitted to school, that fact simply does not come across clearly enough. Seen in the context of poor implementation of a very clear judgment, it is also not enough to prevent inevitable exclusions.

But by far the most worrying aspect of the bill is the creation of the national and provincial intergovernmental committees to aid state schools that refer cases of pupils who have not submitted the documents mentioned. It includes representatives from the departments of social development and of home affairs and, oddly, the department of employment & labour, SAPS, the National Treasury and the department of statistics, to name a few. The national amended admission policy features a similar referral mechanism, but in the case of that policy the referral is to the head of department and not an intergovernmental committee.

At best, the creation of national and provincial intergovernmental committees in the Bela bill is misguided. The barriers to obtain documentation exist in legislation such as the Births and Deaths Registration Act, or in unlawful practices of the department of home affairs. For example, until very recently the Births and Deaths Registration Act did not allow unmarried fathers to register the births of their children. This has had the effect of leaving thousands of births unregistered in cases where the mothers are unavailable or unwilling to register births. Another example is that home affairs habitually refuses to issue permits to asylum seeker children who arrived in SA after their parents. Thus, the issues that prevent children from possessing documentation need to be resolved systemically through law reform and ensuring that home affairs complies with its legislative obligations, rather than through the creation of intergovernmental committees.

But the fact that it is misguided is not the biggest concern. The department of education sharing children’s information is unlawful. It’s in conflict with the Protection of Personal Information Act, and it is also worrying when considering the representatives on the committees. What role does the department of employment & labour have in assisting children to obtain documentation? The same can be asked of the police, the department of justice and constitutional development, and Stats SA. Most civil society organisations, particularly those with experience of assisting migrants, agree their involvement appears to lack good faith and is likely to be another way to enforce immigration control. In this respect, the Committee on the Rights of the Child, together with the Committee on the Protection of the Rights of All Migrant Workers and their Families, released a joint general comment which urges state parties to implement a “firewall” to ensure information gathered for other purposes is not used for immigration enforcement.

The only conclusion that can be drawn from the above is that the department of education must stop fixating on children’s documentation and move its focus to honouring the spirit of the Centre for Child Law judgment. This means reflecting on the important protective role it must play in relation to children and what actions best fulfil that role. In this instance, it meansthe only change the Bela bill ought to make is one that ensures all pupils, regardless of their documentation status, are enabled access to school, in full recognition of their vulnerability and the role and importance of education in alleviating that.