On average, South Africa receives around 63,339 asylum applications each year. But the government has done little to provide protection and social security to both asylum seekers and refugees in the form of effective protection against violent attack and access to shelter, social benefits, job security, basic financial services, and funded social welfare programs. by the government.
Despite the fact that the South African Refugee Act recognizes the vulnerabilities of asylum seekers and refugees seeking refuge from persecution, human rights violations and other justifiable reasons, the government continues to hinder access to basic services .
Asylum seekers tend to be victims of human trafficking due to the preliminary nature of their settlement in the country. They are also vulnerable to labor exploitation (for example, sweatshops and cheap labor), sexual abuse in shelters, and citizenship scams, among others.
The process of obtaining asylum is not easy, leading to exposure to racism, xenophobia and blatant discrimination.
The government has failed to create enabling resources and opportunities for something as essential as basic education for children. They have been discriminated against despite the legislative framework, which provides for equal and inclusive education.
Barriers are created by poor immigration policies, ineffective policy implementation, poor documentation, and institutional problems such as discrimination in schools and the Department of Internal Affairs’ ineffective asylum and refugee processing system.
This can negatively affect the development of children who need to go to school and the progress of asylum seekers who depend on completing school to obtain a job for family income.
In addition, the government has done little to minimize the constraints on education for asylum seekers, including a lack of enabling legal documentation, an inability to pay education-related fees and costs, language barriers, and successful compliance. of the requirements of the school admission policy.
Esther Nkulu’s story is one of many stories of children who have been greatly affected by South Africa’s poor immigration policy. Esther has lived in South Africa for 12 years on an asylum seeker’s permit. She has had to go as far as to start a petition to ask the internal affairs department to do something.
“I tried so many places but they rejected me… Help me raise awareness about how the lack of proper documentation puts so many restrictions on the lives of the young people, the leaders of tomorrow. All I long for is to continue my education. 12 years have passed and they still give me an asylum seeker’s permit with which it is difficult to obtain scholarships or scholarships.
“My mother is unemployed and can’t even pay the tuition required by the university.”
The legal position in both national and international law is very clear on the education of asylum seekers.
First, the right to education is a clear universal human right in terms of the Universal Declaration of Human Rights.
Second, although the Convention relating to the Status of Refugees is not direct about the right to education of asylum seekers, Article 22 establishes that refugees have the right to access basic education.
Third, the African Union Refugee Convention is informed by the provisions of the African Charter on Human and Peoples’ Rights that everyone has the right to education. Finally, according to article 13(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Member States have the obligation to give effect to the right to education so that people can participate effectively in a “free society , promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups”.
South Africa, along with other ICESCR member states, have three main obligations under the right to education. Firstly, Member States are obliged to respect the right to education by avoiding any measure that hinders or prevents the enjoyment of access to education. For example, in South Africa, strict admission policies can be relaxed for asylum seekers.
Second, Member States must protect asylum seekers through measures that prevent third parties from interfering with the enjoyment of the right to education. Third, member states must fulfill the right to education by taking active steps to empower and help individuals and communities.
Member states are expected to observe other specific obligations. First, make available enough educational institutions and facilities.
Secondly, to guarantee accessibility to educational institutions for all without discrimination. Third, to ensure that the form and content of education are acceptable to both students and parents.
Fourth, the nature of the education provided must adapt to the changing needs of society, especially in the context of the needs of students within their diverse social and cultural environments.
Fifth, in terms of articles 13(2) and 14 of the ICESCR, Member States are obliged and have an immediate duty to prioritize the possible integration of free and compulsory primary education.
Sixth, in the case of secondary, higher and fundamental education, member states have the obligation to take reasonable measures to carry out the education and guarantee a system of educational scholarships.
Finally, both article 13(3) and (4) require member states to establish “minimum educational levels” for which educational institutions are established.
Article 13 of the ICESCR recognizes the fact that the right to education is a progressive right. But this does not entitle South Africa to discriminate against asylum seekers in relation to education because that would not be permitted under Article 1 of the Convention against Discrimination in Education.
The South African legal context at the national level is that everyone has the right to basic education in terms of section 29(1)(a) of the Constitution and section 9C(1)(b) of the Refugees Act, which allows study permits for asylum seekers at the discretion of the officer issuing asylum visas.
The high court of appeal in the case Minister of Home Affairs v Watchenuka held that asylum seekers are granted the right to study in South Africa until their asylum application is decided.
The right to education is considered an empowering right due to its ability to enable marginalized people to fully participate in their communities and elevate their social and economic circumstances to lift themselves out of poverty.
Education is one of the best investments South Africa can make because of its ability to reduce labor and sexual exploitation and human rights violations and because it contributes to the defense of democracy. As a democratic country and a member of all these conventions, it is in South Africa’s best interest to realize the right to education of asylum seekers and refugees.
Although the government is not taking adequate measures, civil society and other non-state actors, such as corporations, through their corporate social investment programs must be part of a coordinated effort to guarantee the education of refugees and asylum seekers. asylum.
South Africa must create an environment where all children deserve and receive an education, regardless of the legality of their parents and themselves in South Africa.
Karabo Mokgonyana is a development and legal professional and Program Director of Sesi Fellowship and Skill Hub.
