A case for the right to education for stateless and undocumented children : a South African analysis in the light of international law

Abstract

This paper is grounded in the right to education, guaranteed to every child, whether stateless or undocumented. Being stateless means that the child is not considered to be a national by any State under the operation of its law and when a child is undocumented it means that they have no government-issued proof of identity. The Constitution of the Republic of South Africa, 1996 provides the right to education for all children, regardless of their nationality. However, whether stateless or undocumented, they encounter impediments when they attempt to exercise their right to education. The study questions whether the South African Government is complying with its constitutional and international legal obligations to provide the right to education to all children. The paper contends that it is not sufficient to state that every child has the right to education, and that there is a need to formulate guidelines and procedures to be followed in cases where children are undocumented or stateless. In addition, the paper analyses the relevant education laws and policies together with the immigration laws and the effects they have on one another. It further addresses how the provisions of immigration law related to education impede undocumented and stateless children from accessing the right to education. Accordingly, the study identifies the gaps in the laws regulating the right to education and their implications when stateless and undocumented children seek to exercise the right to education. This paper recommends that the South African Government adapts its education laws and procedures in ways that consider the circumstances of stateless and undocumented children.