Attending School While Undocumented

On 18 and 19 September 2019, a High Court in the town of Makhanda, Eastern Cape, will hear arguments in Centre for Child Law and others v Minister of Basic Education and others. The case will substantially impact on nearly a million learners inside and on the peripheries of the South African public school system – children who have come to be known as “undocumented learners”.

These children want to attend school, to learn, grow and flourish, but their ability to do so is at risk because they lack one or more official documents – an identity document, evidence of having applied for a permit, or the permit itself.

The case considers, among other things, the constitutionality of provisions of a policy and a piece of legislation.

The impugned provisions of the policy – the Admissions Policy for Public Ordinary Schools – require that learners provide an identity document as a condition for admission into schools. If learners do not have an identity document, they may be conditionally admitted to schools for a three-month period. The reality for the children in this case (and across the country) is that barriers to obtaining identity documents are far more serious than a three-month grace period will remedy. The hurdles placed in front of their caregivers by the South African legislation on birth registrations are simply insurmountable, despite these caregivers’ mammoth efforts.

The impugned provisions of the legislation – the Immigration Act 13 of 2002 – render it an offence for schools to provide schooling to non-South African children without the necessary permits to remain in South Africa.

Access to public schooling is the central issue in the case. The High Court will be asked to decide whether children’s lack of official documentation – by no fault of their own – is a justifiable reason to exclude these children from attending public schools.

Section 29(1) of the South African Bill of Rights states that “everyone” has a right to basic education – this is one of the few unqualified socio-economic rights of our Constitution and is therefore, our Constitutional Court has pronounced, “immediately realisable”.

Given the current political climate in South Africa, it is essential that the right to basic education is interpreted to provide much-needed protection to some of South Africa’s most vulnerable – black, poor, undocumented children.

SECTION27 will intervene as amicus curiae in the matter. The aim of the intervention is to provide the court with the available international and foreign comparative law, showing that children’s access to schools may not be inhibited by reason of their documentation status. Section 39(1) of the Constitution demands that the court consider international law when interpreting rights in the Bill of Rights. It also permits courts to consider foreign comparative law when interpreting rights.

These international and foreign comparative sources show that section 29(1)(a) of the Constitution must be interpreted through five key lenses: a child-centred approach; universal accessibility; non-discrimination; the transformative role of education, and the need for education access to be practical and effective.

Our intervention explores the International Covenant on Economic, Social and Cultural Rights (ICESCR), which positions education as an empowerment right that is an indispensable means of realising other human rights. Out of the ICESCR a framework of four features was developed, known as the “4-A’s”, one of these being “accessibility” – the central principal of relevance in the case. It demands that education be made accessible to everyone, free from discrimination.

The Convention on the Rights of the Child (CRC) sets out explicitly that “national, ethnic or social origin...birth or other status” are prohibited grounds of discrimination in accessing education. The African Charter on Rights and Welfare of the Child as well as the African Charter on Human and People’s rights reinforce this prohibition.

Cases such as Plyler v Doe (US Supreme Court) and Girls Yean v Dominican Republic (Inter-American Court of Human Rights) emphasise the transformative power of access to education and the importance of always taking a child-centred approach to interpreting the reach of this right. Both cases found that children may not be denied access to education simply because they lack official documentation.

The legal position emanating from all of these resources is crystal clear – children residing in South Africa must be provided access to schools, irrespective of their documentation status.

Section 41 of the Constitution further enhances this obligation to provide access without discrimination. SECTION27 will argue that this constitutional provision obliges the national Department of Basic Education, Provincial Department of Education and Department of Home Affairs to co-operate and co-ordinate their actions to enhance the fulfilment of children’s rights to education, rather than undermining them.

SECTION27’s full heads of argument are available here. MC

Samantha Brener is an attorney and Vuyisile Malinga a researcher in the Education Rights programme at SECTION27.

Maverick Citizen will report on the case.