Regional Conference on Migration

Seminar on Human Rights and Migrants

ACCESS TO EDUCATION

 

 

Paper presented by the International Organization for Migration

 

 

I.  Introduction

 

 

In preparation for this meeting on the human rights of migrants, Member States of the Regional Conference on Migration received a questionnaire dealing with various rights accorded to migrants in their respective countries. One topic of the questionnaire was access to education. This presentation aims to present the responses to the questionnaire on this topic, but will first highlight the relevant international standards on education. Identifying the international principles will provide a context and point of comparison for the answers, and allow an assessment of the degree to which the practice of a country conforms to international standards.

 

 

II.  Applicable Principles

 

The right to education is a fundamental human right. The Universal Declaration on Human Rights states (in Article 26(1))that

Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

 

This right is guaranteed to all persons, without discrimination as to factors such as national origin, race, colour, birth or other status. The right is also confirmed in Article 13 of the International Covenant on Economic, Social and Cultural Rights[1] which recognizes the right of everyone to education.

 

The right of the child to education is expressly recognized by the Convention on the Rights of the Child[2].  The Convention has been ratified by 191 State[3], a number which is unprecedented in the field of human rights.  The almost universal acceptance of this instrument shows the importance that States attach to such rights, and means that its provisions are binding on most countries of the world. Article 28 of the Convention addresses education and provides that, with a view to achieving this right and on the basis of equal opportunity, States Parties should make primary education compulsory and available free to all; encourage the development of secondary education making it accessible to every child; and take appropriate measures such as the introduction of free education and offering financial assistance in case of need. As with the International Covenant on Economic, Social and Cultural Rights, States Parties are also urged to make higher education available to all on the basis of capacity by every appropriate means.

 

With respect to the children of migrants, Article 30 of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families[4] addresses, even more specifically, the right to education The provision guarantees that:

 

Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of cither parent or by reason of irregularity of the child's stay in the State of employment.

 

Further, the Convention against Discrimination in Education of 1960 provides in its article 3 that in order to eliminate and prevent discrimination in education, States Parties are to undertake to give foreign nationals resident within their territory the same access to education as that given to their own nationals.[5]

 

The right to education is also addressed in several international declarations. To cite a few examples, the 1990 World Declaration on Education for All establishes that basic education should be provided to all children, youth, and adults[6] Article 3(4) of the Declaration states that an active commitment must be made to remove educational disparities so that undeserved groups such as the poor, indigenous people, migrant workers, minorities, refugees and displaced persons, should not suffer discrimination in access to learning opportunities.

 

The 1990 World Declaration on the Survival, Protection. and Development of Children also notes the importance of equal access to education of all children[7] as does the 1985 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live.[8]

 

The above mentioned international agreements and declarations strive to ensure that equal access to basic education is available regardless of gender, race or background. There is also general consensus that primary education should be free to all and that secondary and higher education should at least be accessible to all according to merit.

 

The law on this subject is clear, access to education is a right of all persons and should not he subject to restrictions or discrimination.

 

III. Overview of States' Practice

 

The Member States of the Regional Conference on Migration were asked to respond to the following questions:

Up to what age or level is free public education provided to children of migrants?

What requirements (documentation, fees, vaccinations) are prerequisites to enroll children of migrants in public schools?

 

In response to the first question, Belize stated that free education is provided to all children from pre-school to standard 6 (grade 8), irrespective of status. lt noted that there is no discrimination, and that generally no questions are asked regarding migratory status. Transportation from remote areas and merit awards for entrance into secondary school are also given without reference to immigration status. The law does require that students obtain student permits, but this is not strictly enforced by schools. Recent initiatives by immigration authorities are being made to regularize migrant students, but it is said that this will not affect provisions under the education rules. In reply to the second question, Belize explained that enrolment requirements, which are equally applicable to all students, include production of a birth certificate, and a vaccination certificate. The latter is not used to deny admission, rather to assess which students need to be granted this service by the Ministry of Health. The issue of fees varies.

 

Canada responded that education is the responsibility of each province and territory. Public education is provided free to all immigrants to Canada including their dependants until the end of secondary school, which normally ends upon reaching 18 or 19 years of age. Normally, in order to enroll children, migrants require the permanent resident visa document for dependants of landed immigrants, and student authorizations for refugee claimants and temporary workers. This means that children of undocumented migrants will not have access to education and schooling.

 

In Costa Rica, pre-school and primary education is compulsory and free. Recognizing that access to education is a fundamental human right; Costa Rica responded that no distinctions are made between nationals and foreigners.

 

The right to education is enshrined in the Constitution of El Salvador (article 58). According to its provisions, pre-school, primary and special education is free and available to all inhabitants of the State, without any type of distinction. A birth certificate is required for enrolment. Also, if a child of a migrant has already started school elsewhere, the previous year's report or certificate is required. These documents must he authenticated by the competent authorities. Apart from this final requirement, the situation is the same in Guatemala.

 

Virtually the same situation also applies in Honduras where non-nationals are treated equally to nationals in their access to pre-school and primary education. These levels of schooling are provided free by the State. A birth certificate is also required for enrolment.

 

The right to education is also guaranteed by the Constitution of Mexico. Pre-school, primary and secondary education is obligatory and is provided free to all persons in Mexico, regardless of nationality or migratory status. The requirements are the same as those for nationals. Namely, in order to enroll in a public school, students must he able to present a birth certificate, a national vaccination card, and a certificate of pre-school education. lt is stated in the response that these documents are available to children regardless of nationality or status. Furthermore, a recent law in Mexico now allows children of migrants to be placed on the civil register at birth, whatever the status of the parents may be. This means that in practice. the children of undocumented migrants who are born in Mexico will have unrestricted access to State services such as education and health.

 

Nicaragua's response referred only to children of migrants in detention, saying that these children do not have access to education, given that the stay in the country is only temporary. Furthermore, they are unable to be enrolled in schools, as they lack the necessary documentation.

 

Panama's Constitution also refers to the right to education of all persons, stating that education is free at all pre-university levels and that primary school is compulsory. The constitutional provision makes no distinction between nationals and non-nationals, so that children of migrants have unimpeded access to schooling. For entry into the first grade of primary school, students must present proof of their migratory status, such as a passport or travel document. For entry into higher grades, children of migrants must present proof of previous schooling, authenticated by the authorities in the country of origin. Despite these regulations, in practice, public schools do allow the enrolment of children without the necessary migration documents. Such documents will be checked before a school diploma is given, but again, the diploma will not be withheld due to an absence of the documentation. However, from the present school year, education authorities are beginning to enforce the necessity of regular travel documents for the children of migrants. Consequently, it appears that the children of undocumented migrants will no longer have access to education in Panama.

 

According to the response of the United States, children of migrant workers in the United States are entitled to free public education on the same basis as any child in the United States. The laws which govern compulsory attendance vary from state to state, but generally, all children must attend public school from approximately age six through the age at which they cither graduate from high school, become legally adult, or satisfy whatever legal requirements permit them to drop out of school.

 

The Migrant Education Programme funded by the United States Department of Education provides grants to states to run programmes of support services, including education services for the eligible children of migrant farm workers. A child is eligible for services funded through the Migrant Education Programme if either parent has moved within the previous three years in search of work, as a principal means of livelihood, in the agriculture, fishing, and dairy processing industries and in accompanying a parent the child has moved across a school district boundary. Children are served from age three until the age of twenty-one. While regulations may vary slightly from localities within a state, in general, any child may he enrolled in public education in the United States with proof of vaccination against childhood diseases and proof of age on some official document such as a birth certificate or baptismal record.

 

The record of a child's previous school enrolment would be desirable, and to a great extent, the migrant programme works to ensure that these records are available. However, the lack of this record should not prevent a child from being enrolled in school.  A variety of other programmes are funded by the US Department of Education, which assure access to public education. lt should he noted that federal law does not mandate school or local school districts to require social security numbers as proof of a student's identity or residency status.

 

IV. Conclusion

 

In practice, only a few countries on the Participating States deny access to education for undocumented migrants. This is not in accordance with the established principles of the right of all persons to education and denies a right to children, who should not he deprived of such a fundamental right due to the situation of their parents. The importance of education cannot be overstated, as the children of migrants who do not have access to education will remain isolated and unable to contribute to the future well being of the country in which they live.

 



[1] G.A.  Res.2200 A U.N. GAOR Supp.  (No.  16) at 49, U.N. Doc. A/6136 (1966), 993 U.N.T.S. 3, entered 3 January, 1976.

[2] Adopted by the General Assembly of the United Nations by its resolution 44/25 of 20 November, 1989.

 

[3] As of 31 December 1997.

[4] G.A. res.45/158, annex, 45 U.N. GAOR Supp.  (No.  49A) at 262, U.N. Doc. A/45/49 (1990).

[5] 429 U.N.T.S. 93, entered into force 22 May, 1962.

[6] 1990 World Conference on Education for All (WCEFA) was convened in Jomtien Thailand by the World Bank, UNESCO, UNICEF, and UNDP.  Organized in response to widespread concern over the deterioration of education systems during the 1980s, the conference concluded with the unanimous adoption of the World Declaration on Education for All, through which the world community renewed its commitment to ensuring the rights of all people to education and knowledge.

[7] The World Declaration on the Survival, Protection, and Development of Children was agreed to at the World Summit for Children on 30 September, 1990

[8] G.A. res. 40/144, annex, 40 U.N. GAOR Supp.  (No.  53) at 252, U.N. Doc.  A/40/53 (1985)