This article has been written by Ms. Rahila Sharif, a Fifth-year student of Vivekanand Education Society’s College of Law, Mumbai.
ABSTRACT:
This article explores the fundamental human right to education for migrant children within the context of international legal frameworks. It examines the challenges faced by migrant children in accessing quality education and highlights legal, administrative, and practical barriers. The discussion emphasizes the importance of upholding international commitments, addressing gaps in policies, and fostering collaboration to ensure that migrant children can fully exercise their right to education.
KEYWORDS:
Migrant children, education, legal frameworks, human rights, challenges, discrimination, access barriers, social integration, international treaties.
INTRODUCTION:
Education is a crucial human right and the cornerstone of children’s growth as well as the development of society at large. In earlier times, people were arranged into groups of hunters and gatherers who moved around depending on where there was food to survive. As a result, migration was typical and ongoing. Natural disasters and man-made situations are the main cause of migration in modern times. There are three different scales of migration: intercontinental, intercontinental, and interregional. The migration from rural to urban areas has been one of the major patterns. Between 1985 to 2005, the number of foreign migrants in industrialized nations was more than a million foreign-born people living in cities like Sydne, Moscow, London, Hong Kong, Dubai and Chicago.
Approximately 34 million individuals who have been forcefully forced from their home countries and are seeking asylum are considered migrants worldwide, with half of them being minors. The number of persons living in a nation other than their birth country is referred to as the “migrant stock” and is the most generally known “measure of international migration”. This measure is based on a specific point in time and is unaffected by the reason for the person’s departure from their place of origin or the amount of time they have lived in their present nation. By 2020, the proportion of foreign migrants in the overall population has increased to 3.6% from slightly less than the 3% it was in 1990 to 2005. Together with the rising global population, this has contributed to the 83% increase of the international migrant population globally from 153 million in 1990 to 281 million in 2020. The number of migrant children increased from around 24 million during the period 1990-2000 by 50% to 36 million in 2020.
IN ACCORDANCE WITH THE 2017 DATA:
Thirty million migrants had children in school as of 2017. Of these, 28 million, or 1 in 80, were in forced displacement; this number includes 16 million children living in internal displacement because of violence and conflict, as well as 12 million children seeking asylum. Furthermore, 7 million children were internally displaced as a result of natural calamities. Children who are refugees have a five-fold higher likelihood of missing school compared to other children. Less than 25% of refugee teenagers are enrolled in secondary education, while only 50% of refugee children are enrolled in primary school.
“There is ample evidence that migrant, refugee, and asylum-seeking students in many countries face a higher risk of marginalization with regard to education systems and opportunities when compared with native students”, observed Vernor Muñoz, the former Special Rapporteur on the right to education.
As per the human rights principles of equality and non-discrimination, every individual, including migrants, has the right to education, regardless of their immigration status or legal status. The right to education for particular groups of migrants, such as refugees or internally displaced people, is also emphasized under international human rights legislation. Furthermore, states have made a political commitment to “ensure inclusive and quality education and promote lifelong learning opportunities for all”, including immigrants with the adoption of the Education 2030 Agenda in 2015.
Given the current global trends and the obstacles that migrants must overcome in order to fully exercise their right to an education, it is imperative that states uphold their international commitments in this regard and make every effort to ensure that all migrants, refugees, and internally displaced persons are placed in within their jurisdiction have access to their fundamental right to education.
This article reminds that everyone has the universal rights to education, as guaranteed by international law, including migrants, regardless of their immigration status or legal status. The reasons for leaving the country of previous residence, the duration of stay, and the legal status granted are some of the factors that affect the legal protection granted to migrants. As a result, certain groups of migrants are granted additional rights and a specific status of migrants and refugees before describing the international legal framework for the protection of the right to education of migrants. Then, drawing from some relevant research findings and available data, the article points out current legal framework and practical barriers to migrants’ education.
Before looking at the international legal framework protecting the right to education of migrants and what are the challenges they face, it is important to understand the terms of the concept.
DEFINITIONS:
Migrant-
The International Organization for Migration (IOM) provides a general and broad definition, which encompasses all types of migrants, and highlights the complexities associated with the displacement of people, which can take different forms and arise for different reasons. It defines a migrant as ‘any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of the person’s legal status; whether the movement is voluntary or involuntary; what the causes for the movement are; or what the length of the stay is.
Migration is either international or internal; moreover, migration is either voluntary or involuntary. Another way of looking at migration can be through the lens of the person’s legal status in his/her new place of residence. This classification refers to the distinction between documented and undocumented migrants.
Migrant Children-
One can define child migrants as children who migrate across national borders separately (though not necessarily divorced) from their families, and include within this definition four broad categories defined by the primary purpose of travel: (a) Children who travel in search of opportunities, whether educational or employment related (b) Children who travel to survive – to escape persecution or war, family abuse, dire poverty (c) Children who travel for family reunion – to join documented or undocumented family members who have already migrated (d) Children who travel in the context of exploitation (including trafficking).
Refugees-
A person is considered a refugee if they are outside their country of nationality and are unable or unwilling to use that country’s protection because of a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinions.
Asylum seekers-
A person who is requesting protection as a refugee and is awaiting the decision of their claim is known as an asylum seeker. according to the UNHCR, asylum seekers are persons who move across borders in search of protection ‘but whose request for sanctuary has yet to be processed.
Internally Displaced Persons (IDPs)-
The Kampala Convention and the United Nations Guiding Principles on Internal Displacement define internally displaced people (IDPs) as individuals or groups of individuals who have been compelled to flee or abandon their homes or places of habitual residence, particularly due to or in order to avoid the consequences of armed conflict, situations of widespread violence, human rights violations, or natural or man-made disasters, and who haven’t crossed an internationally accepted State border.
INTERNATIONAL LEGAL FRAMEWORK FOR THE PROTECTION OF THE RIGHT TO EDUCATION OF MIGRANTS:
The framework of international law that protects migrants’ right to education includes treaties, which impose legally binding obligations on states, as well as other non-binding sources of “soft law,” such as declarations and resolutions, action plans, UN treaty bodies’ and UN Special procedures’ interpretations of treaties (general comments and recommendations), and human rights guiding principles.
Based on the human rights principles of equality and non-discrimination, this international legal framework protects the right to education for migrants, regardless of their immigration status or legal status. Migrants are subject to the general clauses found in the major treaties that protect the right to education. International human rights legislation also highlights some kinds of migrants’ access to education.
Legal Frameworks-
International human rights treaties protect the right to education of migrant children. Article 26 of the Universal Declaration of Human Rights (UDHR) affirms education as a universal right and highlights its significance for personal growth. According to the Universal Declaration of Human Rights (UDHR), “everyone is entitled to all rights and freedoms set forth in this Declaration, without distinction of any kind,” including the right to education recognized in Article 26.
The fundamental international instruments protecting human rights that provide the right to education also uphold the values of equality and nondiscrimination, such as the right to education for every child is expressly addressed in Article 28 of the CRC, with a focus on equal access to education. This right is further upheld by Article 13 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), Article 2.1 of the Convention on the Rights of the Child (UNCRC), Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and Articles 1.1 and 3 of the UNESCO Convention against Discrimination in Education (CADE).
These treaties set the stage for guaranteeing that immigrant children’s rights to an education are upheld globally.
Additionally, it is the duty of every state to pass legislation and implement policies that guarantee every child, including those who are migrants, the right to an education within its boundaries. The efficacy of these national frameworks differs, though. While some jurisdictions may have comprehensive regulations, others may not specifically address the educational rights of children of migrants. A unified approach to education for children of migrants requires coordination between national and regional programs. States are required to make sure that their domestic laws and regulations, together with their constitutions, do not discriminate against any specific person or group based on illegal reasons. They must also take action to stop, lessen, or eradicate the attitudes or circumstances that lead to or support discrimination.
STATE’S OBLIGATIONS-
Their obligations regarding the right to education includes:
- Abolishing all statutory provisions, administrative directives, and practices that involve discrimination in education;
- To make sure that there is no prejudice in the admission of students to educational institutions, by legislation when necessary;
To prohibit disparities in treatment between nationals by public authorities regarding school fees, scholarships, and other forms of aid for students, as well as requirements for permits and facilities to pursue studies abroad;
- Not to permit any restrictions or preference based only on a student’s membership in a specific group in any form of assistance provided by the public authorities to educational institutions;
- To provide foreign nationals residing on their territory with the same access to education as that provided to their own nationals.
INTERNATIONAL TREATIES GUARANTEEING THE RIGHT TO EDUCATION-
The main international treaties guaranteeing the right to education of migrants are: –
- The International Covenant on Economic, Social and Cultural Rights (ICESCR),
- The Convention on the Rights of Child (UNCRC),
- The UNESCO Convention against Discrimination in Education (CADE),
- The Convention relating to the Status of Refugees (CSR or 1951 Refugee Convention),
- The Protocol to the Convention relating to the Status of Refugees (PCSR),
- The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICPRMW).
CHALLENGES IN ACCESS OR PRACTICAL BARRIERS TO EDUCATION FOR MIGRANT CHILDREN: –
Even in the case of inclusive and protective policies, immigrants encounter a variety of administrative, legal, and practical barriers in their search of their rights to a quality education. These obstacles consist of:
Legal and Policy Gaps:
Legal ambiguities and gaps may arise when national laws fail to specifically address the educational rights of children of migrants.
Access Barriers:
Documentation Requirements: Children of migrants may not have the paperwork required to be enrolled, which would prevent them from attending school.
Language Barriers: Children of migrants may experience additional difficulties as a result of language barriers that obstruct efficient communication and learning.
Discrimination and Stigma:
The mental health of immigrant children may be impacted by discrimination based on nationality or immigration status, which can result in social shame and exclusion.
Inadequate Support Services:
Academic performance of migrant children may be hindered by inadequate language support, counseling, and other services that are not tailored to their specific requirements.
Economic Barriers:
Economic constraints may limit the ability of migrant families to afford schooling expenses, exacerbating educational inequalities.
Social Integration:
Difficulties in social integration can affect the overall well-being and educational experience of migrant children, creating additional challenges for their successful integration into the education system.
Trauma and Mental Health:
Migrant children may have experienced trauma during their journey, and addressing mental health needs is crucial for effective learning and overall development.
Mobility and Disruption:
Frequent movement of migrant families can lead to disruptions in education, affecting continuity and academic progress for migrant children.
CONCLUSION:
Migration is important for improvement of people`s livelihood. Especially rural life. There is a need for more ethnographic, multi-sited, multiple perspectives and longitudinal study on independent child migration and education on left behind migrant children. International human rights instruments provide a foundation for the rights, but national laws and policies play a crucial role in translating the principles into actionable measures. Discrimination, economic barriers, and social integration challenges are among the hurdles faced by migrant children in realizing their right to education. To address these challenges, concerted efforts are required, including legal reforms, awareness campaigns, and the provision of support services. The collaboration between governments, NGOs, communities, and educational institutions is paramount to ensuring that the educational rights of migrant children are not only recognized on paper but effectively implemented in practice. Only through such comprehensive and collaborative efforts can we create an educational landscape that truly leaves no child behind, regardless of their migration status.
Ending this article with the quote said by Kofi Annan, Former United Nations Secretary-General:-
“Education is a human right with immense power to transform. On its foundation rest the cornerstones of freedom, democracy, and sustainable human development.”
REFERENCE:
This article was originally written by the Right to Education Initiative published in the year 2018 on the right to education website. The link for the same is herein.
United Nations,2017, report. The link for the same is herein.
OHCHR. Migrants and human rights. The link for the same is herein.
UN General Assembly, Universal Declaration of Human Rights (UDHR), 10 December 1948, 217 A (III). The link for the same is herein.
http://www.refworld.org/docid/3ae6b3712c.html
International Covenant on Economic, Social and Cultural Rights (ICESCR). New York, 16 December 1966. The link for the same is herein.
https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). New York, 7 March 1966. The link for the same is herein.
Convention Relating to the Status of Refugees. (CSR or 1951 Refugee Convention). Geneva, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. The link for the same is herein.: http://www.refworld.org/docid/3be01b964.html
UNICEF et al. 2018. A call to action – Protecting children on the move starts with better data. The link for the same is herein-
https://data.unicef.org/wp-content/uploads/2018/02/Migration_advocacy_Feb20.pdf
Education International. 2017. UN Compact on Migration must put workers and education rights first. Education International. The link for the same is herein.
Convention on the Rights of the Child (UNCRC). New York, 20 November 1989. The link for the same is herein.
http://www.ohchr.org/en/professionalinterest/pages/crc.aspx