|The study assesses the application of policies on the right of refugees and asylum seekers with regard to the education of their children, and the many challenges impeding this right. Fundamental changes in the legal framework protecting the right to education of the children of refugees and asylum seekers have been in place since 1994, when South Africa became a democratic state. The principles of international treaties recognising the rights of children were incorporated into the Constitution of South Africa of 1996, demonstrating South Africa’s commitment to the protection of children’s rights. However, studies have suggested that, refugees’ and asylum seekers’ children have been discriminated against in terms of access to education, despite the legislative framework which provides for equal and inclusive education in South Africa. Access to education for migrant children in South Africa is invariably met with challenges which constitute a violation of the Constitution and international law.
This study assessed policies and practices affecting refugees’ and asylum seekers’ children to access primary schools in a democratic South Africa. The researcher argues that access to education for refugees and asylum seeker’s children must be guided by the social justice principle of “every child deserves an education”, regardless of the legality of their parents in South Africa. Failure to afford them the opportunity to study is a violation of the Constitution and international law.
The study used semi-structured interviews based on a questionnaire. Participants included parents who were refugees or asylum seekers, schools’ principals, and officials from Scalabrini Centre and the Western Cape Education Department (WCED). The data collected from respondents was presented, discussed and analyzed through a thematic analysis approach. From data collected, it was possible to identify the barriers preventing refugees’ and asylum seeker’s children from accessing education. Some of the barriers were generated from gaps in migration policy, ineffective policy implementation, poor documentation and various institutional challenges. Based on the study findings, it is recommended that South African lawmakers formulate policies that speak to the needs of the refugee child and amend the current migration policy to make it more reasonable and accommodative with regard to meeting the needs of migrants’ children in general, and refugee’ and asylum seekers’ children in particular. This would enable South Africa to uphold the constitutional values and its international obligations in relation to the promotion and protection of the right to education for all children.