Realising undocumented immigrant children's right to a basic education in South Africa in accordance with international law

Abstract

Many people in Africa are moving to countries that offer them prospects of peace, economic stability, and protection from political violence. South Africa is one of the most attractive destinations due to its relatively improved economy, political stability and good human rights record. Although asylum seekers and refugees form a part of immigrants, most people who arrive in South Africa are voluntary immigrants seeking greener pastures. Due to stringent visa requirements, which most of them do not meet, South Africa has seen exponential growth in undocumented immigrants who arrive with their young children and who also bear children inside South Africa. Undocumented immigrant children, like all other children, are entitled to all rights to which children are entitled in terms of the Constitution of the Republic of South Africa , 1996 and treaties to which South Africa is a State Party. One of these rights is the right to a basic education. However, there are concerns that South African policies and legislation potentially violate its constitutional and international obligations as far as the provision of basic education for undocumented immigrant children is concerned. This is so because some policies and legislation prohibit or restrict the enrolment of undocumented immigrant children in schools. Also, there have been attempts to cut off funding for schools which provide learning opportunities for undocumented immigrant children. Although the courts interdicted such acts and interpreted legislation in a way that can be reconciled with the right to a basic education for undocumented immigrant children, barriers to access basic education persist. In this context, this thesis uses the doctrinal legal research method to ascertain the extent to which South Africa fulfils its international and domestic obligations to realise the right to access a basic education for undocumented immigrant children. The thesis contributes to legal knowledge by adding new insights into the right to a basic education for undocumented immigrant children in South Africa. After a diligent search of legal materials, no comprehensive work could be found on the legal challenges undocumented immigrant children face in accessing basic education in South Africa. The thesis further contributes to knowledge by bringing insights and recommendations from the treatment of undocumented children in the United States of America (USA) education system to bear on the South African perspective. The USA also experiences high levels of illegal immigration and has grappled with some of the same challenges facing South Africa in providing basic education for undocumented immigrant children. While other countries (and their legal systems) encounter immigration, the USA is looked at specifically as it has probably adopted the most farreaching decision to fully grant education rights and benefits to undocumented immigrant children.