A Migration Perspective on Education
Can you imagine a life without an education? Attending compulsory schooling, following an on-line language course, starting a vocational training to become a plumber: we are not aware of the fact that these are all manifestations of the enjoyment of the right to education. Many people take this right for granted; probably they do not consider education a human right, a tool aimed at protecting human dignity. This may be different once their personal situation becomes insecure due to a need to flee from armed conflict, persecution or a desire to improve their socio-economic position through migration. In their new country of arrival freely chosen or forced to go to, their personal educational situation may be insecure as well. Human rights get meaning when their realization is at risk. The right to education as a human right may provide opportunities to refugees, asylum-seekers, undocumented or irregular migrants and regular migrant workers to decide upon their options for the future and possibilities for self-realisation with a view to living in freedom and dignity. For refugees attending education is the right avenue to become a full member of their new country of residence. Regular migrant workers and their children will benefit intellectually and socially from going to school and learn about the people and society where they stay temporarily. Asylum-seekers who await a decision about a residence permit consider attending basic (language) education as an appropriate means to compensate for the emptiness and hopelessness of living in an asylum-seekers reception centre. This is the more so for unaccompanied minor asylum-seekers who are in a vulnerable position. For irregular, undocumented migrants, being able to follow a basic education helps in creating stability and some kind of regularity in one’s personal life and a feeling of self-esteem. Pursuant to this right, states have obligations to provide for access to educational services and financial resources to make sure that no one is deprived of, as a minimum, basic educational qualifications.
The Importance of Education as a Human Right
The right to education is a universal human right: it applies to everyone, everywhere and always. It is of an inclusive nature, meaning that no one must be excluded from access to education on discriminatory grounds. Education can be seen as a key right: it unlocks the enjoyment of other human rights. A well-educated citizen is in a better position to find a job (right to work), is more aware about health risks (right to health), and is able to actively take part in cultural and social life and express his or her opinion (right to participation and freedom of expression). The gender dimension of the right to education is also important, because it enables women to emancipate and contribute to society as independent citizens. Consequently, the right to education accentuates the unity, interdependence and indivisibility of all human rights. The right to education is also an empowerment right: education empowers people towards self-realisation and personal development, to move up the social ladder and control the government through the right to vote and engage in political and community debates. As one of the leading human rights treaties puts it: ‘education shall be directed to the full development of the human personality and the sense of its dignity’ (Article 13 (1), International Covenant on Economic, Social and Cultural Rights). In a case concerning undocumented children in the USA, the Supreme Court ruled that ‘education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests’ (Plyer v. Doe, 1982).
Education has become increasingly important in our digital, knowledge-based society. The idea of a life-long learning process has been accepted and is part of the concept of a ‘project of life’. The latter entails a personal plan how to shape one’s life and future. Attending education is a key element of such a plan. Like the European Court of Human Rights has said in the Ponomaryov v. Bulgaria Judgment (2011): ‘Indeed, in a modern society, having no more than basic knowledge and skills constitutes a barrier to successful personal and professional development. It prevents the persons concerned from adjusting to their environment, and entails far-reaching consequences for their social and economic well-being’ (para. 57). This is the more relevant for refugees, asylum-seekers and migrant workers who often find the studies they have followed and the diplomas they have obtained not recognized in their new country of residence. There may then be a need to do additional studies once they have received a residence permit.
The educational situation of asylum-seekers and refugees in temporary reception camps across the borders of the countries where conflicts occur is of a special nature (for example Lebanon, Jordan, Greece and Turkey). Their situation may be precarious due to a shortage of facilities (buildings, qualified teachers, school materials) and a lack of financial resources from donors. The question is who will take responsibility for securing their right to education? This should be the international community, but this presupposes commitment and political will to protect those that are in a very vulnerable situation. In many cases, additional financial resources are required to cater for the educational needs of these groups. The UN High Commissioner for Refugees very much relies on extra donations for its educational programs in refugee camps. If these children are denied a good quality basic education, a whole generation may be lost.
The Human Rights Framework
International human rights law provides for a right of everyone to education, without discrimination on the basis of, among others, national or social origin or other status. This has been interpreted as implying that the principle of non-discrimination extends to all persons of school going age residing in the territory of a state, including non-nationals and irrespective of their legal status. The latter means that also irregular or undocumented migrants can rely on the right to education. It gives rise to unequivocal immediate obligations. Policy freedom for the state does not exist in this respect. Discrimination on any ground is prohibited, because the essence of the right is at stake. The latter entails an equal right to have access to educational institutions. This can be qualified as the core or minimum content of the right. This follows from the universal nature of human rights. Special measures for 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 given to nationals with respect to elementary (primary) education, and not less favourable than that accorded to aliens in the same circumstances, with respect to other types of education. Article 3(1) Convention on the Rights of the Child adds to this that the ‘best interests of the child shall be a primary consideration’ in any measures taken that may affect them. That may include the provision of educational services to refugee children, asylum-seekers, undocumented children and children of migrant workers. One may think of learning the language of the country of new residence. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families guarantees equality of treatment of migrant workers, their children and members of their families with nationals of the state of employment in matters of access to educational institutions and services (Article 30 and 43). The problem with this Convention is that it is not widely ratified by states of employment, because it contains some far-reaching obligations. On the regional level the European Convention on Human Rights contains a clear and strict provision: No person shall be denied the right to education (Article 2, First Protocol). This right can be relied upon by anyone who is within the jurisdiction of a state party, thus including those who are in an irregular migrant situation. However, the types of education that can be accessed are limited to primary and secondary education. Under the law of the European Union minors who apply for asylum and refugees have access to education under the same conditions as nationals of the EU Member States.
Challenges Ahead
Implementation of the right to education for asylum-seekers, refugees and irregular migrants will confront governments of receiving countries with different types of challenges and dilemmas. First of all a balance needs to be struck between the educational needs of minors and young adults versus the differential treatment of citizens and aliens with respect to access to educational services. The public interest may include the need to avoid that irregular aliens, through education, take root in society; to limit allocation of scarce resources to those who obtain an official residence permit; but also the need to use migrant labour in the future in light of an ageing population. On the other hand, there are the legitimate interests of newcomers to become full members of society through participation and inclusion. Education plays a key role in this process. States have policy freedom when taking decisions about the allocation of scarce financial resources, but when doing so they must be guided by the human rights obligations that they have accepted voluntarily as state parties to human rights treaties. In other words, human rights law gives rise to duties of care for states. At the same time, human rights law provides for the possibility to restrict the enjoyment of human rights on the basis of nationality or residence status, provided there is a legitimate aim (such as countering illegal stay), and the restrictive measure is proportional. For example, the public interest may require that states discourage irregular migrants from leaving their country of origin and embarking on a dangerous journey to Europe. However, once they have arrived, basic human rights must be protected. This does not mean that they should be given access to all services on the same footing as citizens. For example, states may have a legitimate interest in avoiding that the availability of free higher education becomes a pulling factor for irregular migrants. The possibility to restrict enjoyment of access to education does not exist when the right to primary or basic education is at stake, because of its fundamental nature. This right must be guaranteed in all circumstances without discrimination.
One can imagine that a generous policy to welcome refugees, asylum-seekers and regular labour migrants and provide them with access educational institutions in their new country of residence or temporary stay may give rise to feelings of incomprehension, unrest and anger among some citizens. At the same time, it is realistic to acknowledge and accept that many of the newcomers (especially refugees) will probably stay permanently, because they are unable to go back to their country of origin. It is therefore necessary for central and local government to be forward-looking in the sense of designing educational policies that are culturally appropriate and prepare for integration and access to the labour market. Therefore language instruction soon after arrival is recommended. This may include speeding up language courses for asylum-seekers likely to be successful. In combination with measures to provide accommodation, social assistance and health care services to refugees and facilitate access to the labour market will put a financial burden on governments. The rationale for this needs to be explained and justified in light of other budgetary priorities, political interests and the international human rights obligations of states.
To conclude, it is important that educational rights of refugees, asylum-seekers, regular labour migrants and undocumented migrants are recognized as human rights, and not merely as goals to be achieved through policy measures. The latter would imply that access to education may be limited or cut down depending on the political colour of the government that is in power. This would be contrary to the nature of the right to education as an inalienable human right. Central, local and school authorities must be aware of this fundamental right and act accordingly.
Fons Coomans - UNESCO Chair in Human Rights and Peace, Centre for Human Rights Maastricht University