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CHAP

T
I G H
ER 6
T S
T H E R G E E S
R E F U N T
OF MIGR A
AND KERS
W O R o gh h e law,
than-Ke e w o f t
n overvi o refugee
l R am ja
Kaaja i d e a
l pr o v t
pter wil relating
Th is cha
v an t c a s e - l aw
r sh o u l d assist
e
policy a
nd rel
er s . Th e chapte ssing schools.
nt lear n s i n acce
m ig r a a r n er
and
a n d m igrant le
refugee

128 Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers 129
CONFLICTS
OVERVIEW THAT BROUGHT
REFUGEES TO
Global forced displacement increased to record- SOUTH AFRICA
high numbers in 2015. By the end of the year, 65.3 WHY DO PEOPLE MIGRATE? people leave an area. They include:
• The Somali civil war, spanning more than
20 years since the early 1980s, grew out
million individuals had been forcibly displaced Some people choose to migrate • Lack of basic services of resistance to the Siad Barre regime and
evolved into clan-based conflicts, invasions,
voluntarily; for example, someone • Lack of safety/high crime
worldwide as a result of persecution, conflict, who moves to another country for • Crop failure and more recently, resistance to Al-Shabaab.
Peace and stability remain tenuous.
better career opportunities. Some • To escape from natural disasters
generalised violence, or human rights violations. people are forced to migrate because such as drought and flooding
• Burundi (1993): Genocide and mass killings
caused displacements and migration.
the circumstances in which they live • To escape poverty • The Rwandan genocide (April-
This is 5.8 million more than in 2014 been uprooted from their homes, have become unbearable; for instance, • To escape conflict, violence and war. July 1994) was a genocidal mass
(59.5 million). By the end of 2015, which has left some 60 million people someone who moves due to war or slaughter of Tutsi in Rwanda by members
about 3.2 million people were waiting displaced worldwide in 2016. famine. A refugee is someone who has Pull factors are the reasons people move of the Hutu majority government.
• The First Congo War (1996-1997) was
for a decision on their application for Women and girls are often denied been forced to leave their home and does to a particular area. They include:
a foreign invasion of what was then
asylum. As in the previous two years, in equal access to essential health services not have a new home to go to. Often • For jobs, business and Zaire, led by Rwanda, which replaced
2015 Syrians lodged the largest number and education opportunities. Girls refugees do not carry many possessions educational opportunities dictator Mobutu Sésé Seko with
of asylum claims worldwide (373 700 are almost 2.5 times more likely to be with them, and do not have a clear idea • Better services, such as the rebel leader Laurent Kabila.

WHY PEOPLE
new claims). In general, recognition out of school in countries affected of where they can find protection. healthcare and education • The Second Congo War (1998-2003) in
rates for Syrian asylum-seekers were by conflict, and studies show that • Good climate the Democratic Republic of the Congo was
MIGRATE above 90 per cent in most countries. girls are less likely to have access to • Safety; less crime
driven by the trade in ‘conflict’ minerals
(any mineral or its derivative determined
At the end of 2015 the number of education in situations of displacement PUSH AND PULL FACTORS • Political stability to be financing conflict in the Democratic
People migrate for many different reasons. new asylum applications was relatively than boys. (UN Women 2016) FOR MIGRATION • More fertile land Republic of the Congo, or any adjoining
These reasons may be classified as country). Although a peace agreement
low, at 62 200. In 2015 South Africa Very few people sought asylum People have moved from their home • Lower risk from natural hazards
economic, social, political or environmental. was signed in 2002, violence and instability
• economic migration: moving to find hosted just over 1 million asylum seekers and protection in South Africa before countries for centuries, for all sorts • To reunite with family members.
continued in many regions of the country,
work and better economic opportunities and 121 645 refugees. The large number 1994. The first large-scale movement of reasons. Some are drawn to new especially in the eastern region.
• social migration: moving somewhere of asylum seekers is due to the serious into South Africa was the movement places, by ‘pull’ factors; others find In 2015, the top five refugee-producing • Burundi (April 2015): Displacements
for better quality of life, or to be backlogs in South Africa’s refugee status of Mozambicans in 2000 following it difficult to remain where they countries were: Syria, Afghanistan, followed protests against the president’s
closer to family or friends determination procedure, which leaves catastrophic flooding in Mozambique, are, and migrate because of ‘push’ Somalia, South Sudan and Sudan. decision to run for a contested third
• political migration: moving to consecutive term. The security situation
persons in asylum limbo for prolonged when more than 220 000 people were factors. Migration usually happens Refugees from these countries
escape political persecution or war has deteriorated, with more than 400
periods. (UNHCR Global Trends 2016) displaced. After the birth of democracy, as a result of a combination of came to South Africa in 2015: people killed and 200 000 fleeing to
• environmental migration: causes of
migration include natural disasters such Globally, asylum protection is South Africa drafted its Refugees Act in these push and pull factors. Zimbabwe, Ethiopia, Nigeria, and the neighbouring countries since April 2015.
as flooding, drought and earthquakes intended to protect those who have 1998, and it became operational in 2000. Push factors are the reasons why Democratic Republic of Congo.

130 Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers 131
Figure 6.1: Distribution of populations of concern
to UNHCR (graphic courtesy of UNHCR).

LAW AND
POLICY
OVERVIEW OF REFUGEE In Southern Africa, an increase in
AND IMMIGRATION LAWS mixed migratory movements has also
Every day, all over the world, people led to growing hostility towards refugees,
make the most difficult decision of their putting pressure on asylum seekers,
lives: to leave their homes in search of host countries and protection space.
a better life. Others are forced to flee
due to conflict, wars and persecution.
South African refugee policy is REFUGEE LAWS
regulated by the Refugees Act, which Refugees are a special category of migrant
allows refugees to ‘seek’ and ‘enjoy’ who seek international protection. South
asylum. Africa has a progressive refugee policy
WHO IS A
South Africa is the only African that includes the basic principles of

REFUGEE?
country with an urban refugee policy refugee protection, including freedom
that refugees are not confined to refugee of movement, the right to work, and
camps. There is no automatic detention access to basic social services.
The United Nations Refugee Convention
of asylum seekers or refugees. Many However, there may be practical
spells out that a refugee is someone who
other countries have encampment barriers to fully accessing these ‘owing to a well-founded fear of being
policies or detention regimes. This rights. The current socio-economic persecuted for reasons of race, religion,
urban refugee policy makes South environment – high unemployment, nationality, or membership of a particular
Africa an appealing place to seek poor service delivery, and economic social group or political opinion, is outside
the country of his nationality, and is unable
asylum. However, there are proposed inequality – has strained relations to, or owing to such fear, is unwilling to avail
changes to the Refugee Act, which if between refugees, asylum-seekers himself of the protection of that country.’
Table 6.1: Snapshot of African countries and number passed in their current form could have and host populations. The practice
of refugees they host (at end 2015) a serious impact on asylum seekers’ of granting asylum to people fleeing
and refugees’ right to free movement persecution in foreign lands is one of the WHO IS AN
INTERNATIONAL COUNTRY REFUGEES ASYLUM SEEKERS and access to certain other rights. earliest signs of civilisation. ‘Civilisation’
ASYLUM SEEKER?
ASYLUM In Africa, the right to seek and enjoy is defined as the process by which a

PROTECTION LAWS South Africa 121 645 1 096 063 asylum is largely respected, with millions society reaches an advanced stage of An asylum seeker is someone seeking
of refugees having found in exile the social development and organisation. international protection, but who has
Zimbabwe 6 950 259
Regardless of how they arrive in a safety and protection they have lost South Africa’s laws allow for refugees not yet been granted refugee status.
Zambia 26 447 2 411 at home. The generosity of hosting to be able to access basic services
country and for what purpose, migrants’,
refugees’ and asylum seekers’ rights Malawi 9 019 14 470 countries in Africa has been outstanding. such as health and education. These
are protected by international law:
Mozambique 5 622 14 825 But in recent years, some core laws also allow for local integration. WHO IS A MIGRANT?
• The Universal Declaration of Human values of asylum protection have In practice, however, local integration
Rights (Article 14) states that everyone Botswana 2 130 135 A migrant is any person who has moved
has the right to seek and enjoy asylum
been challenged, with instances of does not always work very well.
Kenya 553 912 39 969 away from the place where they were
from persecution in other countries refoulement. This is when refugees or Failed or rejected asylum seekers
born. This could refer to rural-urban
• The 1951 UN Refugee Convention protects Ethiopia 736 086 2 131 asylum seekers are forced to return may be returned to their country of in-country migration, or the crossing of
refugees from being returned to to a country where they are liable origin. These are persons for whom a international borders. A migrant may be
countries where they risk persecution. Chad 420 774 2 749 either documented or undocumented.
to be subjected to persecution. final decision has been made to refuse

132 Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers 133
DUTIES AND INTERNATIONAL
RESPONSIBILITIES INSTRUMENTS
OF REFUGEES asylum protection. If they are then LIMITED PRESCRIBED The issue of the right to work they are therefore protected by THAT PROHIBIT
unable to regularise their status via the APPLICATION PERIOD and study has previously been the South African Bill of Rights. DISCRIMINATION
Refugee Convention Article 2 states that Immigration Act, they may be declared The Bill’s amendment in Section pronounced on by the Supreme The right to work is currently
every refugee has duties to the country in an illegal foreigner and be deported. 13 (amending Section 21 (a) of Court of SA in Minister of Home under review, and may be limited There are many other international
which he finds himself, which require in instruments that expressly prohibit
Dependents of asylum seekers and the principal act) provides that an Affairs v Watchenuka and Others. by the state at a future date.
particular that he conform to its laws and discrimination in education and
regulations, as well as to measures taken
refugees are able to access the same application for asylum must be The case concerns the prohibition require positive measures to promote
for the maintenance of public order. status as their parents/caregivers if they made in person, in accordance with on the rights of asylum seekers equality. These include:
are able to prove they are dependent. the prescribed procedures, within to work and study while they are INTERNATIONAL LAW ON • The International Covenant on Civil
five days of entry into the country. waiting to be recognised as refugees. THE RIGHT TO EDUCATION and Political Rights (ICCPR)

WHO IS A Individuals who fail to lodge their The court found that the Minister Article 22 of the Refugee Convention • The International Convention on Economic,
Social and Cultural Rights (ICESCR),
DEPENDENT?
IMMIGRATION LAWS claims within the prescribed period of Home Affairs could not prohibit is very clear: refugees must receive the
• The Convention for the Elimination
Immigration laws regulate the will be excluded from refugee status. asylum seekers from holding same basic education as nationals. of all forms of Discrimination
The Refugees Act limits the definition of
entry, residence and departure The South African administrative the right to work and study. Against Women (CEDAW)
‘‘dependent’’ to include only unmarried of foreign nationals. process for granting asylum is difficult, This power to determine • The Convention on the Rights
minor biological children who are Nationals of certain countries, such and subject to serious delays. It is conditions of work and study ACCESS TO EDUCATION of the Child (CRC)
younger than 18 years old, as well as as the Southern African Development also plagued by corruption. This vests in the Standing Committee FOR REFUGEES, ASYLUM • The Convention on the Rights of
children legally adopted in the asylum SEEKERS AND MIGRANTS People with Disabilities (CRPD)
Community (SADC) countries (for results in asylum seekers remaining for Refugee Affairs. The Standing
seeker/refugee’s country of origin.
example, Botswana and Zimbabwe), in limbo for long periods. Committee’s general prohibition In South Africa, basic education is
This excludes children who have not been are permitted to enter South Africa of employment and study for the available to everyone. The Refugees

BASIC EDUCATION AND


adopted, but who are under the care of a
for a limited short-term period (up to first 180 days after a permit has Act makes specific reference to this.
refugee or asylum seeker; as contemplated
LIMITATION ON THE
THE REFUGEES ACT
by the decision in Mubake, which held a maximum of 30 to 90 days) without been issued is in conflict with the Access to education is also
that separated asylum-seeker children needing to apply for a visa in advance. RIGHT TO WORK Bill of Rights. A general prohibition guaranteed by the Constitution’s
should be considered dependents of All other foreigners must have a visa The Section 15 amendment seeks to of work and study was found to be Bill of Rights, in Section 29:
their primary caregivers in terms of the Section 27 of the Refugees Act: Protection
issued to them before arriving in South introduce provisions that would divide unlawful and was set aside. The court ‘(1) Everyone has the right – and general rights of refugees
definition of ‘dependent’ in the Refugees
Act. This will provide legal protection for Africa. This excludes people who want asylum applicants into two groups: held that the freedom to engage in To a basic education, including A refugee -
separated children, and ensure that they to apply for asylum. An asylum applicant those who can sustain themselves productive work is an important adult basic education;’ (a) is entitled to a formal written
are issued with asylum or refugee permits. may arrive in a country without a visa and their dependents financially for component of human dignity. recognition of refugee status
and still apply for asylum. Migration laws a period of four months, and those The court stated that while an The education system is further in the prescribed form;

WHO ARE
are complex, and differ from country who can’t. There are plans to include asylum seeker is in the country, he regulated by the South African (b) enjoys full legal protection, which
includes the rights set out in Chapter

UNACCOMPANIED
to country. An asylum applicant may an assessment of an applicant’s or she must be respected, and is also Schools Act and regulations. 2 of the Constitution and the right to
not be prosecuted for not having a ability to sustain themselves and protected by Section 10 of the Bill Section 3(1) states that it is remain in the Republic in accordance
AND SEPARATED
with the provisions of this Act;
valid passport in their possession. their dependents, though no of Rights. It went on to say that the compulsory for every parent to
CHILDREN?
(c) is entitled to apply for an immigration
Asylum seekers and refugees may also information has been provided as to freedom to study is also inherent to ensure that every learner attends permit in terms of the Aliens Control
not be subjected to refoulement. how this ability will be assessed. human dignity, because without it, school from the age of seven years Act, 1991, after five years’ continuous
The effect of this amendment is a person is deprived of the potential to the age of fifteen years or the residence in the Republic from the date
An unaccompanied child is someone who on which he or she was granted asylum, if
is not in the care of an adult caregiver, to limit the right of asylum seekers to for human fulfilment. It is expressly ninth grade, whichever comes first. the Standing Committee certifies that he
guardian or parent. A separated child PROPOSED CHANGES TO work. Those who are in a positon to protected by Section 29(1) of the Section 5(1) of the SA Schools or she will remain a refugee indefinitely;
is in the care of an adult caregiver THE REFUGEES ACT sustain themselves financially will be Bill of Rights, which guarantees Act regulates admission to public (d) is entitled to an identity document
who is not their parent or guardian. referred to in Section 30;
Both unaccompanied and separated The current amendments to the Refugees denied the right to work for a four- everyone the right to a basic schools, and holds that a public
(e) is entitled to a South African
children have a right to seek asylum. Act make some far-reaching changes, month period. Asylum seekers who education, including adult basic school must admit learners and travel document on application as
which are intended to discourage non- cannot sustain themselves may be education, and to further education. serve their educational requirements contemplated in Section 31;

REFOULEMENT
genuine asylum applicants. Of particular offered shelter and basic support by The court held that human without unfairly discriminating in (f) is entitled to seek employment; and
concern is the deviation from the urban the United Nations High Commissioner dignity has no nationality. It is any way. Section 5(2) states that the (g) is entitled to the same basic health
refugee policy, which has been the for Refugees (UNHCR). If they are able inherent in all people – citizens governing body may not administer services and basic primary education*
Refoulement refers to the forcible which the inhabitants of the Republic
return of refugees or asylum seekers to a cornerstone of South African refugee to obtain assistance, these persons and non-citizens alike – simply any test related to the admission receive from time to time.
country where they may be persecuted. protection since its inception in 1993. will also be denied the right to work. because they are human, and of a learner to a public school. *[Author’s emphasis]

134 Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers 135
The Department of
Education’s A Public
School Policy Guide
BARRIERS TO LEARNING
states that ‘every child It is clear that both international and domestic law guarantee the right
has the right to be to basic education to all learners. The State is obliged to provide basic
admitted to school education to all children, irrespective of nationality, documentation status,
and to participate in or ability to pay for school fees. Unfortunately, this right is not being
all school activities’. uniformly respected and promoted in South Africa. There are still many
refugee and migrant learners who face significant barriers to learning.
NON-DISCRIMINATION Department of Home Affairs to legalise that children who had been separated
IS GUARANTEED IN THE their stay in the country in terms of from their parents were dependents of
ADMISSIONS POLICY FOR the relevant legislation (Immigration their primary caregivers, in terms of the ADMISSION BARRIERS WHAT THE LAW SAYS the provincial department, through the
ORDINARY SCHOOLS Act or Refugees Act, as applicable). definition of ‘dependent’ in Section 1 of The South African Schools Act ABOUT ADMISSIONS school principal. If you are not happy
• Section 7 of the Admissions Policy for the Refugees Act. They contended that requires students to be admitted According to Section 39 of the National with the reasons given for the decision,
Ordinary Schools states that the policy The Department of Education’s A Public such children should automatically be to public schools without any form Education Policy Act, the governing you must lodge a written appeal to the
is determined by the governing body School Policy Guide states that ‘every child recognised as dependents of the existing of discrimination. This section goes body of a school must inform all parents MEC for Education in the province.
of the school in terms of Section 5(5) has the right to be admitted to school asylum seekers or refugee adults who on to say that the governing body of learners admitted to a school of
of the South African Schools Act. The and to participate in all school activities’. accompany them into South Africa. of a public school determines its their rights and obligations in terms
policy must be consistent with the This policy stipulates that a school Initially, the applicants also sought admission policy subject to the of the South African Schools Act FINANCIAL BARRIERS
Constitution and the SA Schools Act, governing body (SGB) may determine the orders against the Department of Basic Schools Act, the Constitution, and any applicable provincial law.
as well as the applicable provincial law admission policy of a school. However, Education, to provisionally allow the and applicable provincial law. Parents must specifically be informed SCHOOL FEES AND EXEMPTION
• Section 9 of the policy states that the the admission policy must be based on registration in public schools of the child Unfortunately, many refugee about their rights and obligations in A school fee is an agreed amount of
admission policy of a public school the guidelines determined by the head applicants and other children who are or migrant learners are refused respect of the governance and affairs money that parents pay to schools,
and the administration of admissions of the provincial education department. dependants of asylum seekers and refugees, admission to ordinary public schools of the school, including the process of aimed at improving the quality of
by an education department must If a learner is refused admission, the as well as an order for the Minister of because they are not able to furnish deciding the school budget, any decision education of the learners. School fees
not unfairly discriminate in any way head of the provincial department Basic Education to review the admission documents such as birth certificates of a parent meeting relating to school fees, may not include registration fees,
against an applicant for admission (through the principal of the school) policy for ordinary public schools by or immunisation cards. Sometimes it and the Code of Conduct for learners. administration or other fees. The school
• Section 19 of the Admissions Policy must inform the parent of the refusal, expressly making provision for child is not possible for a parent or child to Section 43 of the National Education may not charge further fees for additional
states that this policy should apply and the reasons for the refusal. If a child is asylum seekers and refugees. That relief ensure that all their documentation Policy Act further sets out the rights of subjects chosen by learners from the
equally to learners who are not citizens refused admission to a school, the school was granted by the High Court in 2013. is in order before they flee from their appeal. Any learner or parent who has school programme. See Chapter 5 for
of the Republic of South Africa and principal must give a written explanation This case is important, as it resolved home country. When schools require been refused admission to a public school more information on school fees.
whose parents are in possession of of why the child was not admitted. the difficulty that asylum-seeker children parents or learners to have all their may appeal against the decision to the There are often additional financial
a permit for temporary permanent Asylum-seeker and refugee children in particular were facing where they were documents in their possession, it Member of the Executive Council, in pressures on refugee or asylum-seeker
residence issued by the Department should be regarded as dependents of unable to obtain asylum-seeker permits. creates obstacles for these learners. terms of Section 5(9) of the Schools Act. parents. Schools sometimes demand
of Home Affairs. This would include caregivers (who are not necessarily parents) They faced further challenges when schools Some schools have also refused to Section 5(9) of the Schools Act states payment in return for admitting a learner
asylum-seeker and refugee children and do not need to hold a study permit insisted they obtain a study permit, in accept the documentation that the that any learner or parent of a learner who who is not a South African citizen, or ask
• Section 21 states that when persons in addition to their refugee or asylum- addition to the asylum-seeker permit. The parents can furnish; but as discussed has been refused admission to a public for additional financial contributions from
classified as illegal aliens apply for seeker permit. In the case of Mubake case clarifies the position for separated above, a parent or caregiver must school may appeal against the decision to these parents. These financial obstacles
admission for their children or for v Home Affairs, the applicants – who or orphaned asylum-seeker children who show that they have applied to the the Member of the Executive Council. can make it very difficult for refugees or
themselves, they must show evidence were orphaned asylum seekers from are now guaranteed access to asylum, and Department of Home Affairs (DHA) If your child is refused admission, you asylum seekers who are already under
that they have applied to the the DRC – sought an order declaring admission to schools on their asylum status. to legalise their stay in South Africa. must ask for a written explanation from financial stress to access schooling.

136 Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers 137
GETTING HELP
Where can foreign learners and parents of learners complain about
WHAT THE LAW SAYS do not understand. Schools might be FAILURE TO RELEASE
ABOUT SCHOOL FEES hesitant to accept a learner who does MATRIC EXAM RESULTS unfair treatment and xenophobia related to access to education?
Section 5(3)(a) of the South African not speak the language of instruction. Sometimes schools tell learners that
Schools Act of 1996 states that ‘no they will not release matric exam results • Department of Education • Consortium for Refugees • Lawyers for Human Rights
learner may be refused admission WHAT THE LAW SAYS to learners who do not have passports (Provincial and National levels): and Migrants in SA • SA Human Rights Commission
to a public school on the grounds ABOUT LANGUAGE or study permits. This is unlawful. Department of Basic Education • Equal Education Law Centre • Centre for Child Law
that his or her parent is unable to A child may not be turned away from If you can prove that you have made toll-free hotline 0800 202 933 • SECTION27
pay or has not paid the school fees a school if they do not speak the or are making attempts to legalise your
determined by the governing body’. language of instruction. The Department stay in the country, you are entitled to
Parents who are unable to pay school of Education is obliged to find a engage in all school-related activities,
fees can apply for a fee exemption. Parents school in which to place the child. including writing examinations and
will need to submit proof of their monthly If the child is unable to speak a South receiving the results of those examinations. Kaajal Ramjathan-Keogh is the Executive POLICY AND GUIDELINES SOURCE MATERIAL AND
income and expenses in order to qualify African language, it may be helpful to find Director of the Southern Africa Litigation FURTHER READING
UNDOCUMENTED MIGRANTS, Department of Education policy, ‘A
for an exemption. This can be done at any a school that offers a bridging course. Not Centre. She has expertise in asylum, refugee
AND THE ARREST AND DETENTION Public School Policy Guide 4’, 1996 United Nations High Commissioner
public school. This process is the same for many schools do; it is not part of official protection, citizenship and statelessness.
OF MINOR LEARNERS Department of Basic Education ‘Admission for Refugees (UNHCR) ‘Global Trends:
asylum seekers, refugees and citizens. If your school policy to offer a bridging course.
Policy for Ordinary Public Schools’, 1998. Forced Displacement in 2015’, 2016.
application for an exemption is denied, An alternative is to place the child in an Children may not be detained for
you can appeal the decision with the Head environment where they are able to learn being in the country illegally. UN Women ‘UN Women statement on
CASES World Refugee Day’, 20 June 2016.
of Department in the province, who must a local school language before they are In a high court case, Centre for Child
explain to you the reason for the decision. placed into a formal school environment. Law v Minister of Home Affairs, the court Minister of Home Affairs v Watchenuka INTERNATIONAL AND R Amit ‘All Roads Lead to Rejection:
A learner cannot be excluded from Our Constitution, in Section 29(2), says said that the detention of children (for 2004 1 All SA 21 (SCA); 2003 ZASCA 142. Persistent Bias and Incapacity
REGIONAL INSTRUMENTS
participation in any official school that everyone has the right to receive immigration reasons) was unlawful. The Centre for Child Law v Minister of in South African Refugee Status
Convention Relating to the Determination’, 2012.
programmes due to non-payment of education in the language of their choice court said that as a vulnerable group, Home Affairs 2005 (6); SA 50 (T).
Status of Refugees, 1951.
school fees by the parent. A school may in public educational institutions, where children are entitled to protection under Mubake and Others v the Minister of F Khan & T Schreier (eds) Refugee
not retain a learner’s report because the that education is reasonably practical. the Children’s Act, regardless of whether The Universal Declaration of Law in South Africa (2014).
Home Affairs and Others North Gauteng
parent cannot afford to pay school fees. they are documented or undocumented. Human Rights (UDHR), 1948.
High Court case no 72342 (2012). J Hathaway The Rights of Refugees
A learner may also not be excluded from This includes access to places of safety. The International Covenant on Civil under International Law (2005).
school if they do not have the ability OTHER BARRIERS The South African Constitution and Political Rights (ICCPR), 1966.
to pay for a school uniform or books. states in Section 28(1)(g) that: The International Convention on
REQUIREMENT FOR SCHOOL REPORTS
CONSTITUTION AND
every child has the right not to be detained Economic, Social and Cultural
LEGISLATION
Some schools may turn away children except as a measure of last resort, in which Rights (ICESCR), 1966.
LANGUAGE BARRIERS who do not have previous school case, in addition to the rights a child enjoys Constitution of the Republic
The Convention for the Elimination
under sections 12 and 35, the child may be of South Africa, 1996.
As discussed earlier in the chapter, reports. This requirement is only for the of all forms of Discrimination
detained only for the shortest appropriate
asylum seekers and refugees may come purpose of placing the child into the period of time, and has the right to be: Refugees Act 130 of 1998. Against Women (CEDAW), 1979.
from a variety of different places, and correct grade. If no reports are available,
i. Kept separately from detained persons National Education Policy Act 27 of 1996. The Convention on the Rights
do not always speak the language of the the school can carry out an assessment over the age of 18 years; and of the Child (CRC), 1989.
place at which they end up. This can be in order to place the child into the South African Schools Act No 84 of 1996.
ii. Treated in a manner, and kept The United Nations Convention
especially difficult for children, if they correct grade. They may also accept an in conditions, that take into on the Rights of Person with
are being taught in a language they affidavit from the parent or caregiver. account the child’s age.’
Disabilities (UNCRPD), 2007.

138 Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers Basic Education Rights Handbook – Education Rights in South Africa – Chapter 6: The rights of refugees and migrant workers 139

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