Protecting the right to basic education of undocumented immigrant children

Recent legal and policy changes are reshaping access to education for undocumented immigrant children in profound ways, marking significant progress in the country’s commitment to human rights, equality and inclusion.

The right to basic education is unconditionally guaranteed to everyone under section 29(1)(a) of the Constitution. Read together with the right to equal protection and benefit of the law, this “immediately realisable” right means that the state must act without delay in ensuring all children have access to education, regardless of their immigration status.

Yet for decades, undocumented children have been largely excluded from the education system, left on the margins by restrictive policies and legislative gaps. Recent developments, however, signal a monumental shift towards a more inclusive approach, harmonising South Africa’s laws with international standards and reinforcing undocumented immigrant children’s right to basic education.

The high court ruling in Centre for Child Law vs Minister of Basic Education (2020) marked a watershed moment. The court unequivocally held that undocumented children have an equal right to basic education, just like documented children.

Prior to this case, policies such as the Department of Basic Education’s Circular 06 of 2016 in the Eastern Cape made funding, and therefore, school admission, conditional on the provision of identity documents (that is, passports and study visas for immigrants). This policy effectively denied undocumented children the opportunity to enrol in schools.

Additionally, sections 39 and 42 of the Immigration Act further restricted access by prohibiting any learning institution from knowingly providing training or instruction to an “illegal foreigner”. These provisions served to exclude undocumented immigrant children from the education system, thereby effectively marginalising them and denying them a fundamental right.

The court’s ruling, however, struck down this exclusionary approach, declaring that education is intrinsic to the dignity and development of every child and cannot be denied on the basis of immigration status.

Ahead of World Children’s Day on Wednesday, 20 November, we should also celebrate this decision, because it not only affirmed the rights of undocumented immigrant children, but also established a legal precedent that has catalysed significant policy reform.

Following this landmark judgment, the Department of Basic Education issued Circular 1 of 2020 which enshrined a directive to all public schools instructing them to admit undocumented children, regardless of their immigration status.

This policy shift represented a critical alignment of educational admission practices with constitutional mandates, ensuring that all children have the opportunity to learn, develop and thrive.

The directive paved the way for further legislative advancements, notably the Basic Education Laws Amendment Act 32 of 2024 (Bela Act), which was signed into law on 13 September 2024. The Bela Act explicitly prohibits schools from denying admission to a learner based on a lack of documentation, filling a longstanding gap in South African education law.

In addition to these legislative strides, the Department of Basic Education released a draft amendment to the Admission Policy for Ordinary Public Schools (1998), inviting public comments. This policy plays a crucial role in shaping undocumented children’s access to basic education, as it establishes the criteria and procedures for their admission into schools.

The draft amendment includes a specific provision for undocumented foreign citizens, with clause 23 explicitly stating that the right to basic education extends to everyone within the boundaries of South Africa, and that nationality and immigration status are immaterial. It advises all schools to admit learners and meet their educational needs, irrespective of whether the learner or their parent produces documentation.

This proposed amendment deserves commendation for its clarity and responsiveness to legal challenges, reflecting South Africa’s commitment to equitable access to education for all children living within its borders.

The Bela Act’s inclusive provisions and the proposed amendments to the admission policy are crucial steps towards meeting international standards set by conventions such as the United Nations Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights, both of which South Africa has ratified. By incorporating these principles, the Bela Act and the proposed policy amendment now position South Africa as a leader in upholding the rights of undocumented children.

They also reaffirm South Africa’s commitment to Sustainable Development Goal 4, which calls for inclusive and equitable quality education for all. The inclusion of undocumented children in South Africa’s education system reflects a robust commitment to creating an environment where every child has the right to learn and succeed, irrespective of their nationality and background.

For undocumented children, access to education is transformative. It is a pathway out of poverty, a bridge to opportunity and a foundation for a dignified life. Education equips children with the knowledge and skills needed to contribute meaningfully to society, breaking the cycle of marginalisation and providing them with a chance to achieve their full potential.

By granting undocumented children access to schools, South Africa is not only fulfilling a constitutional obligation but is also investing in the future of all who call this country home.

The impact of the Centre for Child Law judgment on subsequent legal reforms cannot be overstated. The court’s recognition that excluding undocumented children from school is both unconstitutional and detrimental to human dignity has set a powerful precedent.

This case has galvanised reform efforts, demonstrating South Africa’s readiness to confront long-standing injustices and uphold its constitutional promises. The judgment and subsequent reforms also reflect a broader commitment within South African society to honour the values of dignity, equality  and justice, even amid complex immigration challenges.

Despite this progress, obstacles remain. The Bela Act’s admission-related provisions have yet to be implemented, with some sections delayed for further consultation.

Additionally, the introduction of online application portals in provinces such as Gauteng, Northern Cape and Western Cape – while intended to streamline admissions – has inadvertently created new barriers for undocumented children, as these systems currently require identity numbers to complete applications.

Until these online systems are adjusted to accommodate all applicants, undocumented children may continue to face challenges in accessing schools.

To ensure South Africa’s progress is meaningful and enduring, two important steps must be taken.

First, the implementation of section 4 of the Bela Act is essential to bring its protections to life, ensuring no child is turned away from a classroom due to a lack of documentation. Ensuring immigrant children access to quality basic education requires attitudinal changes among those clothed with the authority to implement the relevant legislative provisions.

Second, provinces must urgently address the design of online admission systems to provide alternative pathways for undocumented children, ensuring that no child is excluded based on an administrative technicality.

As we look to the future, South Africa’s progress in this area serves as a beacon of hope and a model for other nations.

By recognising and protecting the rights of undocumented children, South Africa demonstrates that the principles enshrined in its Constitution are more than words on paper – they are commitments to justice, equality and the right of every child to pursue their dreams.

Ahead of World Children’s Day, let us celebrate these advances and renew our dedication to creating an inclusive education system that serves all children, regardless of their documentation status. DM

Dr Bridget J Machaka is a postdoctoral research fellow in the Department of Private Law at Stellenbosch University.