MIGRANT CHILDREN - Access to education as a fundamental right for every child, yet in practice is it applicable for unaccompanied migrant minors?
Access to the health system, protection of their lives, respect for their privacy, identity and adequate food are some of the rights contained in the Convention on the Rights of the Child (1989). Although not all countries have ratified the convention after signing it, it is true that the concern for the general welfare of children is established as a key point in the construction of more inclusive and just societies. However, it is also important to emphasise that the protection and promotion of children is at the mercy of the different countries that adapt their regulatory frameworks to respond to the different contexts that develop within their regions. The right to education is one of the fundamental rights enshrined in the Convention on the Rights of the Child (1989) [1], a right that provides a basis not only for the construction of the person, but also forms part of their development as an individual within society both locally and globally. Similarly countries from across the African Continent have by enlarge incorporated children’s rights to education within their domestic legislation.
Children's rights in the case of South Africa
In the case of South Africa, we have a well-developed normative framework with different tools that relate to the sphere of protection of the underage population. Starting with the South African Constitution [2] as a basis, the Children's Act of 2005 [3] was also promulgated to guarantee a comprehensive approach to the assistance of children in need of protection. Both documents apply to minors, whether they are nationals of the Republic of South Africa or unaccompanied foreign minors, as they recognise the special vulnerability of this population segment and the need for the provision of specific protection policy on this basis. This legislative protection helps to establish the appropriate course of action, in unaccompanied minors cases, as the Children's Act refers, indirectly and in time potentially directly [16], to the need to assign a social worker to the unaccompanied minor in need of care and protection in order to begin the process of mobilising protection resources. The protection needs in these cases are provided in a report prepared by the designated social worker. This social worker conducts an analysis of the situation of the case, compiles a report, and takes the report to the Children’s Court for final determination of the most appropriate protective action to be taken in each case.
It must be emphasised that in South Africa, despite having a well-developed and comprehensive legislative framework, there are gaps in the implementation of protection measures due to the underdeveloped resources of the social systems and the lack of tools for social workers. For more information on this issue, please consult the May-August 2021 edition of AHMR (volume 7, number 2, article no. 1) [4].
The migration issue as an added element of vulnerability
Reviewing the different elements that have an impact on the increased vulnerability of minors, we come across the migratory characteristic. This issue can act as a catalyst for issues surrounding the protection of children who undertake mobility and/or displacement, whatever the reason for it. The migration of a child is subject to a wide range of reasons that influence the decision-making that leads to the initiation of a migration process. Armed conflict, lack of opportunities in their country of origin, situations of abuse and violence, and environmental disasters are some of the factors that contribute to human mobility. [5]. While we often generate a predetermined idea of family migration as the prevailing model, the data tells us otherwise, giving a much more important role to the migration carried out by those minors who undertake mobility alone, known as unaccompanied minors [6]. Statistics show that, as of 2020, minors already make up 42% of the total displaced population [7]. This data undoubtedly calls for a series of responses from public institutions in receiving countries that focus on guaranteeing the fundamental rights of these unaccompanied migrant minors.
The search for better academic opportunities was ranked as the third reason behind work and other unspecified reasons according to the data presented by Anderson, Apland, & Yarrow in their article "Unaccompanied and unprotected: the systemic vulnerability of unaccompanied migrant children in South Africa"[8]. Furthermore, none of the children surveyed in this case reported having entered South Africa to seek asylum, which may also be due to a lack of awareness of this possibility. Lacking clear motivations and objectives for crossing the border, there was greater exposure to the dangers that most of the children and young people faced. These not only included various forms of abuse by smugglers procuring their entry into the country and armed bandits, but also a lack of protection procedures suited to their status as minors. As a consequence, and based on their irregular administrative situation, they were transferred to detention centres where they shared spaces with adults and were even deported without an analysis of their individual cases [8].
The importance of the protection of minors is established as paramount in each and every case in which minors need their rights to be guaranteed. The analysis of the different experiences of children and young people during the migration process provides highly valuable information for the design of assistance and protection procedures. These improvements are part of a system that is constantly improving tools to identify the vulnerabilities of the segment of the population we are concerned with. Recognising the existing needs and the institutional role in the promotion of children's rights is established as the working premise. In this way, and following article 28 of the CRC, we can understand that access to a free primary education system should be established as an unquestionable right of children and young people. This right not only alludes to the guarantee of an academic basis for minors, but also to the precept of non-discrimination that is also found in this convention and in the universal declaration of human rights itself. Therefore, under the umbrella of the general protection of minors and the guarantee of their access to their fundamental rights, it is understood that migrant minors are also included, but is this really the case? What are the challenges that minors face in accessing the education system in South Africa?
Recognition of unaccompanied migrant children in South Africa
First of all, we must bear in mind that when we talk about unaccompanied migrant children, we can refer to different groups of children who carry out a migration project alone, whether they are asylum seekers, displaced children, children who have migrated on their own or refugees. In this post, we adopt the definition of unaccompanied minor given by UNHCR and the IOM: "Unaccompanied migrant children (also called unaccompanied minors) are children, as defined in article 1 of the Convention on the Rights of the Child of 20 November 1989 (CRC), who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so."
One element to be clear about is that child migration does not respond to a single profile. The diversity of factors that influence the start of the migration process has an impact on the decisions made by these children and young people who undertake the journey. Motivations to improve living conditions, access to education or the search for work actively involve them in their mobility decisions. However, the leading role that minors seem to have taken on in recent years does not leave the migration project free of dangers. The vulnerability that surrounds migrants in general is particularly heightened when it comes to minors, since the lack of protection or care figures makes them targets for abuse by different exploitative figures, such as human traffickers [5].
As highlighted above, the difficulty of recognising unaccompanied migrant children in South Africa lies not in the lack of legal tools to support this task, but in the poorly developed institutional resource framework that allows for the effective implementation of protection systems. As a result, many children continue to lack access to basic services and entitlements such as health care, shelter and education. They find themselves in limbo between the normative framework that covers migrants and asylum seekers, but without specific recognition as a vulnerable population because they are minors. This is undoubtedly the seed for the development of a series of problems that affect not only the integration of the minor in the destination society, but also directly affect the psychosocial development of the minor, as well as constituting a violation of international normative guidelines that seek to establish guarantees for the protection, care and promotion of children and young people in all their forms and conditions [9].
Access of unaccompanied migrant minors to the education system in South Africa
The autonomous movement of minors, as mentioned above, places them in a particularly vulnerable position. The lack of documents, whether due to loss, damage or lack of them, exposes them to labour exploitation. Their statelessness or risk of statelessness becomes a burden in their situation, which adds to the traumas they experience throughout their migratory process and pushes them to move clandestinely. As a result, they often end up between a rock and a hard place: one, the exploitation networks, and the other, the detention systems [10].
Despite the recognition of everyone's right to basic education according to the UN Convention on the Rights of the Child, the actual implementation of this right is not safeguarded in practice. This is due to the alleged pretext imposed by educational institutions that claim that it is impossible to officially enrol children in the academic system due to the lack of documents that identify them [6].
Aware of the importance of education and its impact on the holistic development of minors, in 2017 a case was argued which, initiated by the Centre for Child Law as the first plaintiff and The Phakamisa High School Governing body as the second plaintiff, requested facilitating access to the classroom for undocumented minors as recognition of their right to education. They argued the importance of education not only for the socio-cultural and personal development of children, but also as a tool against social exclusion due to its transformative and empowering character. Therefore, it called for the inclusion of minors in the education system and that the lack of documentation should not be a reason to deny access to academic training [11].
Three years later, the verdict in favour of favouring children's access to free basic education was a turning point that opened the door for thousands of children to continue their education. This was an example of the protection and promotion of the best interests of the child. It also underlined the importance of education as a fundamental right for the development of individuals in any society, and therefore of vital importance for the achievement of participatory and democratic states [12].
While other challenges remain to be addressed, such as those based on linguistic differences and equality in the processes of access to education due to differences based on the resource base of each child, the existence of a court ruling that supports equal access to the education system for all children and young people is already a valuable foundation. Safeguarding universal education without exclusion based on language, nationality or economic factors is an achievement that needs to continue to be progressively modelled to accommodate the different contexts of children who migrate in search of better training and educational opportunities for their futures.
The impact of Covid on access to education for unaccompanied migrant minors and SDG4.
The pandemic affected the population as a whole, but it is true that it had a greater impact on the most vulnerable segments of the population. While difficulties in accessing the education system are multiple for migrant and refugee children, one of the effects of Covid-19 has been a notable limitation in academic opportunities for them. The digitisation of education systems in response to confinement and newly imposed health measures has left a large number of children and young people stranded without the resources to attend online classes. According to UNICEF [13], 89% of students in Sub-Saharan Africa do not have computers at home to attend classes. This represents a problem that increases the exclusion of those minors who do not have the possibility of continuing their academic education and who are subject to their incorporation into the labour market as an alternative to their educational activity [14].
In 2020, the United Nations launched an alliance between the UN system and different civil associations to design teaching models that would facilitate the continuation of studies for children and young people who were affected by this abrupt end to their educational processes after the outbreak of Covid-19. This initiative is aligned with Sustainable Development Goal 4, which promotes quality education for all children equally. It is an effort to pursue equal educational opportunities and to ensure access to inclusive, quality education that enhances learning opportunities and thus upward socio-economic mobility for all children and young people around the world [15].
James Chapman and Nicolette Pérez Verwer
SIHMA SIHMA
Project Manager Research and Communications Intern
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SOURCES AND BIBLIOGRAPHICAL REFERENCES:
[1] https://www.unicef.org/child-rights-convention
[2] https://www.justice.gov.za/legislation/constitution/pdf.html
[3] https://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf
[4] https://sihma.org.za/journal/ahmr-volume-7-number-2-may-august-2021
[5] Unicef. (2016). Uprooted: The growing crisis for refugee and migrant children. UN. - https://data.unicef.org/resources/uprooted-growing-crisis-refugee-migrant-children/].
[6] Crock, M., & Benson, L. B. (Eds.). (2018). Protecting Migrant Children. Cheltenham, UK: Edward Elgar Publishing. doi: https://doi.org/10.4337/9781786430267
[7] https://www.unhcr.org/60b638e37/unhcr-global-trends-2020
[8] Anderson, K., Apland, K., & Yarrow, E. (2017, January). Unaccompanied and unprotected: the systemic vulnerability of unaccompanied migrant children in South Africa. In The United Nations Convention on the Rights of the Child (pp. 361-389). Brill Nijhoff
[9] Ortelee, I. (2010). Undocumented child migrants in South Africa: A study of service provision (Master's thesis).]
[10] Van de Glind, H. (2010). Migración y trabajo infantil. Análisis de las vulnerabilidades de los niños migrantes y niños que quedan atrás. In IPEC.]
[11] http://www.saflii.org/za/cases/ZAECGHC/2019/126.pdf
[13] Brandt, Nicola. Migrant, refugee and internally displaced children at the centre of COVID-19 response and recovery, UNICEF, 2020. Available at: https://www.unicef.org/eap/stories/migrant-refugee-and-internally-displaced-children-centre-covid-19-response-and-recovery
[14] Ferraro, F., & Chapman, J. (2021). The impact of Covid-19 in people on the move in, to and from Africa. Studi Emigrazione, (221), 69-81
[15] https://www.un.org/sustainabledevelopment/es/education/
[16] https://www.gov.za/sites/default/files/gcis_document/202010/childrens-amendment-bill-b18-2020.pdf
OTHER RESOURCES CONSULTED:
Estrada, J. S. (2017). Hacía una política migratoria con perspectiva de derechos humanos. Una mirada crítica a los derechos de niñas/os migrantes no acompañados. Alegatos, 28(86), 155-178.
Photo by Ismail Salad Osman Hajji dirir on Unsplash
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