Migrants, refugees and internally displaced persons

By Delphine Dorsi , 26 November 2013

Migrants, including refugees, and internally displaced persons (IDPs), are people away from their home region or country, who often face challenges in enjoying the right to education. Due to migration – forced or not – schooling for children and adolescents is often disrupted.

The reasons people migrate are multiple and varied from the search for better living and working conditions due to poverty to personal security, conflict, environmental degradation or other human rights violations. Migration journeys can be long and dangerous during which children generally do not have access to any let alone adequate education. Yet, education is essential for all young people to not just provide some form of stability in their daily lives but to equip them with the skills and knowledge to develop themselves personally, facilitate the enjoyment of other rights and thereby to participate effectively in society.

According to international law, host and/or transit states have the obligation to provide access to quality education for migrant children regardless of their migratory status, based on the fundamental human rights principles of non-discrimination and equality.

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Sections

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Types of migratory status

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According to the International Organization for Migration a migrant is ‘a person who moves away from their place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons.’

Migration is either international or national, voluntary or involuntary/forced and migrants can either be regular or irregular. Note that IOM defines irregular migration as ‘movement of persons that takes place outside the laws, regulations, or international agreements governing the entry into or exit from the State of origin, transit or destination’, however ‘the fact that they migrate irregularly does not relieve States from the obligation to protect their rights.’

Refugees have a specific legal status protected under international or national law. The Convention relating to the status of refugee defines a refugee as a person who, ‘owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.’

An asylum seeker is a person who is seeking protection as a refugee and is still waiting to have its claim assessed.

The UNHCR Guiding Principles on internal displacement and African regional Kampala Convention refer to internally displaced persons (IDPs) as ‘persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an international recognized State border.’

Possible overlap between the different types of migratory status

It is highly difficult to put migrants in specific categories, as their reasons for moving, as well as their legal status and corresponding rights often evolve and overlap over time. One person’s situation might thus fall within different categories at the same time.

For instance, internal migrants include both people who are forced to move (IDPs) and people who choose to establish themselves to a new place of residence for socio-economic reasons (internal migrant workers) as well as for cultural reasons (nomadic and pastoral people).

Forced migration not only includes refugees and asylum seekers but also people forced to move due to external factors, such as environmental catastrophes (for instance ‘climate refugees’), poverty or development projects. Note that the term ‘climate refugees’ does not exist in international law. Even though it has not been recognised formally, institutions such as the European Union have expressed growing concern and have taken action to support and develop resilience in the countries potentially affected by climate-related stress. Some recommend the use of ‘climate migrants’.

Moreover, even if they have fled for similar reasons to refugees, IDPs legally remain under the protection of their own government as long as they remain within that government’s territory – even though that government might be the cause of their flight – their legal status and attached rights are thus different from those of asylum seekers and refugees.

The international legal framework guarantees the right to education of migrants, irrespective of their legal or migration status, based on the human rights principles of equality and non-discrimination.

More detailed information about the different categories of migrant in RTE’s paper: The status of the right to education of migrants: International legal framework, remaining barriers at national level and good examples of states’ implementation

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Barriers to migrants’ education

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Discriminatory laws

International law guarantees everyone the right to education, regardless of nationality, ethnicity, gender, sexuality, migration or other status, or place of residence. However, in some states, legislation on access to education still remains discriminatory and restrictive for migrants. National citizenship can be a prerequisite for access to education, undocumented migrants are often excluded from access to education, or the right to education may be denied to migrants if they do not have residence status.

These national laws are contrary to the human right of non-discrimination, and put at risks many children, especially undocumented migrant children who are particularly vulnerable.

Temporary protection

The protection of migrant children is often short term and temporary. For instance, within the European Union, unaccompanied minors, a population particularly vulnerable to exploitative labour and sexual violence, benefit from temporary protection, which expires at the age of 18 whether they are in school and integrated into the host society or not.

Documentation requirements

Demands on families and children for specific documents in order to be able to enrol in school also runs counter to the right of non-discrimination. These restrictions highlight a considerable gap between national practices and states' commitments to the international human rights legal framework.

Proof of residence, migration-related documents, or birth certificates are often requested for school enrolment, but due to long and perilous journeys, understandably many migrants are not in possession of these documents and therefore are refused access to education.

Detention

Undocumented migrant families and their children, as well as undocumented unaccompanied minors are often subject to detention in transit zones. In these circumstances, their right to education is not respected, often erroneously justified on the grounds of the temporary or exceptional nature of their stay (GEMR, 2019). International law states that unaccompanied or separated migrant children should not as a rule be detained solely for immigration reasons unless it can be exceptionally justified on other grounds . If children are detained then they have the right to access education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release (Article 37 of the Convention on the Rights of the Child, General comment No. 6, paragraph 61-63). Therefore, it is clear that States have an obligation, if detention is unavoidable, to provide and guarantee access to education.

Other Barriers

Other practices may hinder migrant children's right to education:

Lack of educational facilities, or school closures due to armed conflict or national disasters
Lack of access to information on the right to education: many families or unaccompanied minors are unaware of their rights, and this lack of information may hinder their enrolment in educational institutions
The geographical inaccessibility of schools
Schools fees and other costs: even if they do not have to pay fees (bearing in mind that primary education should be free for all children and progressively available at secondary level) many parents cannot afford the indirect costs of sending their children to school, for example, transportation, uniform, school materials and lunch
Language of instruction: migrants often face challenges receiving education in their mother tongue and therefore have difficulties to adapt and learn
Lack of qualified and experienced teachers and other necessary support: many education systems lack the resources to adapt to the specific learning needs of this population to ensure they receive a quality education. This includes addressing discrimination and harmful behaviours such as bullying which hinders integration and deters migrant children and their families from accessing education.

All these barriers can also have a negative impact on their social integration.

Find out more detailed information about barriers to migrants’ education in RTE’s paper: The status of the right to education of migrants: International legal framework, remaining barriers at national level and good examples of states’ implementation. This paper also includes interesting examples of the implementation of the right to education at national level including:

Welcoming refugee and asylum seekers despite the difficult economic, political context
Inclusive laws and policies
Measures to facilitate the education of nomads
Measures to ensure free access to education
Measures to facilitate migrants’ enrolment in school
Measures to facilitate migrants’ integration adapting to their specific needs, including language classes and specific programmes

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The right to education of migrants under international law

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The fundamental human rights principles of non-discrimination and equality

International and regional instruments that generally guarantee the right to education to everyone also applies to migrants, irrespective of their legal or migration status, based on the human rights principles of equality and non-discrimination

States have an immediate obligation to ensure equality and non-discrimination in the access and enjoyment of the right to education and should ensure that their laws, regulations and administrative practices do not discriminate against migrants.

This has been reaffirmed by the Committee on Economic, Social and Cultural Rights, in its General Comment No. 20 on Non-discrimination in economic, social and cultural rights (para 30.), the Committee on the Rights of the Child (CRC), in its General Comment No. 6 (para. 12) et General Comment No. 22 (para. 9, 22 and 41).

‘The non-discrimination principle of the Convention on the Rights of the Child obliges States parties to respect and ensure the rights set forth in the Convention to all Children, whether they are considered, inter alia, migrants in regular or irregular situations, asylum seekers, refugees, stateless and/or victims of trafficking, including in situations of return or deportation to the country of origin, irrespective of the child’s or parents’ or legal guardians’ nationality, immigration status or statelessness.’ (CRC, General Comment No. 22, para. 9)

‘Every unaccompanied and separated child, irrespective of status, shall have full access to education in the country that they have entered… such access should be granted without discrimination and in particular, separated and unaccompanied girls shall have equal access to formal and informal education, including vocational training at all levels.’ (CRC, General Comment No. 6, para. 41)

Specific provisions applying to certain migrants’ categories

In addition to the core international human rights instruments protecting the right to education of everyone, migration-specific instruments also contain provisions regarding the right to education of certain categories of migrants. These instruments can be referred to in order to strengthen the legal framework already provided by the core human rights instruments.

The right to education of migrants is specifically protected by the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families which guarantees their access to education on the basis of equality of treatment with nationals.

The right to education of refugees is specifically guaranteed by the 1951 Convention Relating to the Status of Refugees, which states that refugees should have the same treatment as nationals with respect to elementary education and treatment as favourable as possible with respect to other education levels (Article 22 and 29). The convention also protects the rights of asylum seekers since they have made an international protection application, they are protected until a decision has been taken.

There is no convention for internally displaced persons (IDPs) equivalent to the 1951 Refugee Convention at international level. But at regional level, the African Union adopted the 2009 Convention for the Protection and Assistance of Internally Displaced Persons, which stipulates that: ‘States Parties shall provide internally displaced persons to the fullest extent practicable and with the least possible delay, with adequate humanitarian assistance, which shall include … education…’ (Article 9.2.b). In situations of armed conflict, IDPs are also protected by international humanitarian law. In 1998, the UN developed Guiding principles on internal displacement, which restate and compile human rights and humanitarian law relevant to IDPs. Principle 23 relates to their right to education.

Find out more detailed information about the international legal framework guaranteeing the right to education of migrants, in The status of the right to education of migrants: International legal framework, remaining barriers at national level and good examples of states’ implementation and International Instruments – The Right to Education of Migrants, Refugee and Internally Displaced Persons

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The content of the right to education of migrants

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The 4 As framework highlights the importance of guaranteeing for migrants, both the right to access education (making it available and accessible), and the right to receive an education of good quality (making it acceptable and adaptable).

Availability: It requires the states to ensure that there are spaces available to welcome migrants in established public schools. Beyond this in the context of refugee camps states, in cooperation with the international community, have to provide temporary schools.

Accessibility: Schools must remain physically and economically accessible. States must ensure that transport is provided for children who need it and that other costs, including school fees if imposed,are affordable including 100% subsidies if appropriate. States must facilitate access to schools and universities even in the absence of normally required documentation.

Acceptability: The quality of education must be of a good standard and be the same everywhere, for nationals and migrants alike. Curricula and teaching methods, must be appropriate and of good quality. Especially in emergency situations (armed conflict, camps, displacement, etc.) often migrant children only have access to informal education at best which will tend not to conform with minimum educational standards.

Adaptability: The adaptability of education is a major issue for migrant’s children. If necessary classes should be mobile or temporary. Whatever approach is followed it must take into consideration the child’s needs and vulnerability as much as possible. It may also require States to provide classes in the mother tongue as far as possible or language lessons to support their better inclusion.

Find out more detailed information, about the content of the right to education of migrants, including specific provisions applying to certain categories of migrants in The status of the right to education of migrants: International legal framework, remaining barriers at national level and good examples of states’ implementation.

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International and regional legal framework

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The international legal framework guaranteeing the right to education of migrants encompasses treaties, which create binding obligations for states, and other sources of ‘soft law’ that are not binding but are still legally significant and often have important moral force, such as declarations and resolutions, frameworks for action, UN treaty bodies’ and UN Special procedures’ interpretation of treaties (general comments and recommendations) or human rights guiding principles.