Head of the Department of International and European Law, Fons Coomans (The Netherlands) holds the UNESCO Chair in Human Rights and Peace at Maastricht University. He is Director of the Maastricht Centre for Human Rights, and a member of the Netherlands Network for Human Rights Research.
Education for migrants: an inalienable human right
The right to education is often taken for granted – until it is taken away. An indispensable tool to protect the freedom and dignity of all migrants, education allows them to fully integrate into their new societies. This legitimate aspiration, however, faces obstacles on the ground.
Enshrined in Article 26 of the Universal Declaration of Human Rights, education is an essential tool for the protection of human dignity. Human rights become even more meaningful when their realization is at risk – as when people are forced to flee from armed conflict or persecution, or simply because they want to improve their socio-economic condition. When they arrive in their new countries, their educational situation could be uncertain.
For refugees, receiving an education is the best way to become full members of their host countries. Regular migrant workers and their children benefit intellectually and socially from attending school, where they learn about the society in which they are living. Asylum-seekers, awaiting a decision about their future, need basic language courses – especially if they are unaccompanied minors. For undocumented migrants, access to a basic education provides stability and a semblance of regularity in their lives, besides increasing self-esteem. The right to education requires states to provide access to educational services and financial resources, so that no one is deprived of basic schooling, at the bare minimum.
The educational situation of asylum-seekers and refugees in temporary reception camps across the borders of countries where conflicts occur (for example, Lebanon, Jordan, Greece and Turkey), is likely to be even more precarious. This could be due to a shortage of facilities such as buildings and school materials, a lack of qualified teachers, and scarce financial resources.
Who, in these cases, should be responsible for enforcing their right to education? The international community, of course, but that requires a determined commitment and a strong political will to protect those in vulnerable situations. Often, additional financial resources are needed to meet the educational needs of these groups. UNHCR, the UN Refugee Agency, relies heavily on special donations for its educational programmes in refugee camps. If these children are denied a good basic education, an entire generation may be lost.
What the law guarantees...
International human rights law guarantees an education for all, without discrimination. This principle of non-discrimination extends to all persons of school-going age residing in the territory of a state, including non-nationals, irrespective of their legal status. Irregular or undocumented migrants can therefore invoke the right to education. This right creates immediate and unequivocal obligations – the state has no margin of freedom in this area. Discrimination on any ground is prohibited, because the very essence of the law is at stake. This implies an equal right of access to educational institutions, which can be described as the core, or minimum content, of the right.
This follows from the universal nature of human rights. Special measures for the protection of the right to education can be derived from the 1951 Convention relating to the Status of Refugees. Article 22 provides that states “shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education” and “in any event not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.”
To this, Article 3(1) of the Convention on the Rights of the Child (1989) adds that “the best interests of the child shall be a primary consideration” in all actions concerning children. This includes the provision of educational services for all migrants.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) guarantees that migrant workers, their children and members of their families, have equal treatment with nationals of the state of employment. Concerning the education of children, Article 30 stipulates that “Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment.” The problem with this Convention is that it has not been widely ratified by the states of employment – probably because it contains very strong obligations.
At the regional level, the European Convention on Human Rights (1950) contains a clear-cut provision: “No person shall be denied the right to education”, (Article 2, of the first Protocol). Under European Union (EU) law, minors seeking asylum and refugees have access to education under the same conditions as nationals of EU member states. This right may be invoked by any person within the jurisdiction of a state party to the convention, therefore including irregular migrants. However, it is limited to education only at the primary and secondary levels.
…and the problems on the ground
The implementation of the right to education for migrants poses a number of challenges and dilemmas for the governments of host countries.
It may be in the public interest to prevent irregular non-nationals from becoming a part of society through education. This could be to limit the allocation of scarce resources only to those who have obtained a residence permit, or to ensure that migrant labour would be available in the future, as populations age.
On the other hand, newcomers have a legitimate interest in becoming full members of society, through participation and progressive inclusion. Education plays a pivotal role in this. States are free to decide how they allocate their financial resources, but while doing so, must respect the obligations of assistance and protection to which they have voluntarily subscribed by becoming parties to human rights treaties.
For example, the public interest may require the state to deter irregular migrants from leaving their country and undertaking a perilous journey to Europe. However, once these migrants have arrived, fundamental human rights must be respected. This does not mean that they should be given access to all services on the same basis as citizens of the host country. States may have a legitimate interest in restricting free access to higher education if that has the effect of attracting more irregular migrants. But states cannot restrict access to elementary or basic education. This right must be guaranteed in all circumstances.
We know that some refugees will probably stay permanently, because it is impossible for them to return to their country of origin. It is therefore essential that national and local authorities anticipate and design educational policies that are culturally appropriate – enabling those who are interested to become integrated, with access to the labour market.
Above all, a balance must be struck between the educational needs of young migrants and the differential treatment of citizens and non-citizens with respect to access to education. For instance, language instruction is recommended for migrants as soon as they arrive.
Ensuring access to education, housing, social and healthcare services and jobs for refugees is bound to impose a financial burden on governments. However, since a generous policy to welcome migrants can sometimes lead to misunderstanding, uneasiness and discontent among some citizens, governments must explain the reasons for their choices and justify them in light of other budgetary priorities, political interests and their international human rights obligations.
To conclude, it is important that the rights of migrants to an education are widely recognized as inalienable human rights, and not merely as goals to be achieved through public policy measures. National, local and school authorities must be aware of this, and act accordingly.
With withis article, the UNESCO Courier marks the celebration of International Migrants Day on December 18.
Note: This article is a shortened version of the academic piece delivered by Fons Coomans, which is available here.