Good news for children of undocumented foreign parents and guardians for their admission into South African schools
CHILDREN of undocumented foreign nationals will not be required to produce any form of identification before registering for admission at any school in South Africa. For decades, undocumented children have been largely excluded from the education system, left on the margins by restrictive policies and legislative gaps. Recent developments signal a monumental shift towards a more inclusive approach, harmonizing South Africa’s laws with international standards and reinforcing undocumented immigrant children's right to basic education.
The neglect of undocumented children's needs in South Africa's education system is mainly linked to the rural-urban disparities in birth registrations and the barriers that migrant parents face in registering their children. In October 2023, former Home Affairs Minister Aaron Motsoaledi revealed a backlog of 258,000 unregistered children under 15, largely due to non-centralized services in rural areas. South Africa, a popular destination for African migrants, faces significant backlogs at the Home Affairs Department, exacerbating challenges for undocumented children. The Centre for Child Law (CCL) emphasizes that an undocumented child is not automatically an irregular migrant. This implies that the South African Constitution guarantees the rights of all children, irrespective of their nationality or immigration status. Section 28(2) states that “a child’s best interests are of paramount importance in every matter concerning the child.” This means that their status as a child takes precedence over their documentation status. The 2020 Phakamisa Judgment affirmed that undocumented learners must not be denied access to schools. It challenged a 2016 circular from the Eastern Cape Department of Education that restricted funding for educational resources to children with identification documents. Judge President Selby Mfanelo Mbenenge declared two clauses of the schools' admissions policy unconstitutional, ordering the admission of all children without official birth certificates into public schools in the province. Many schools have since moved to an online application process, allowing alternative proof of identity for undocumented children.
The Phakamisa judgment ensures that children are admitted to schools even without birth certificates. Testimonials from a Pakistani-born mother and an undocumented parent from Mozambique highlight the understanding and support they received from the South African education system.
In April 2024, the government gazette the White Paper on Citizenship, Immigration, and Refugee Protection, proposing reforms that could impact migrant and undocumented children's rights, such as Access to education, Childbirth registration, protecting migrants and undocumented children from exploitation and ensuring that they have access to healthcare services. The Equal Education Law Centre expressed concerns about the potential negative effects of the White Paper.
South Africa's legal and policy reforms represent a significant step toward inclusive education for undocumented children, upholding constitutional promises and international commitments. Further efforts are needed to ensure these changes are fully implemented and accessible to all children.
After the presidency recently appointed the Minister of Education (Siviwe Gwarube ) and Minister of Home Affairs (Leon Schreiber ), the Equal Education Law Centre hopes that Gwarube will prioritize the constitutional rights of all learners and ensure equitable access to quality education for every child in South Africa.
Photo by Emmanuel Ikwuegbu on Unsplash
Sources
https://www.parliament.gov.za/news/bela-act-now-fully-operational-says-minister-basic-education
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