Schools cannot threaten, detain children over missing documents – rights group

2017-03-01 20:41

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Cape Town - Lawyers for Human Rights (LHR) has urged the departments of home affairs and basic education to issue an urgent directive telling schools that they are not allowed to reject or detain any child whose documents are not in order, regardless of their nationality.

This was after Eastleigh Primary School in Edenvale threatened to have foreign children without the proper documentation taken away by the police unless they brought their papers.

The school withdrew the letter that it sent on February 22, but LHR said that its apology letter still contained a threat when it urged parents and caregivers to sort out the documentation issues so that the children's education can continue "harmoniously".

LHR objected to the idea that the children's continued education hinged on the ability to produce the proper documents, when the law clearly states that children cannot be excluded over this.

The organisation wants the Department of Home Affairs to tell schools that refugee and asylum seeker children are entitled to be admitted to school, even while waiting for their documents, and do not need study permits to attend school.

It wants a directive stating that the principals will not be arrested or fined for admitting undocumented children, as it is rumoured. It also wants the directive to say that undocumented children are allowed to attend school in South Africa.

Birth certificates

It wants the Department of Basic Education to amend laws to eliminate unconstitutional exclusions over birth registrations and to stop the discriminatory practice of requiring expensive DNA tests from poor people for birth registrations.

LHR said the reasons for not having the right documents are out of a child's control.

Refugee and asylum seeker children are entitled (in terms of the Refugees Act) to get the same permit as their parent, but they battle to get them from refugee reception offices.

The rights organisation said it has also encountered schools that do not admit children without a birth certificate even though they fall into a category of the Births and Deaths Registrations Act that makes it impossible to get one.

These are children of single fathers where the mother is missing or undocumented; children in child-headed households; children in the care of guardians where the parents are alive and children of undocumented parents.

The department must instruct schools to immediately stop discriminating against foreign and undocumented children by refusing access or charging higher fees. It must also instruct schools that they have a responsibility to help children get their documents.

'Children always entitled to their rights'

LHR said that at the beginning of every year some children face being thrown out if they cannot produce their documents.

"These include not only undocumented migrant children, but also documented refugee and asylum seeker children and undocumented South African children. Whatever their status or level of documentation, children are always entitled to their rights," LHR said.

According to the LHR these are the basic rights that children have:

- Children are never to be detained for immigration purposes;

- All children in South Africa are equally entitled to education regardless of their status or documentation. The Schools Act prohibits discrimination of any form when it comes to admission to school;

- South Africa's courts have found that the right to study is inherent in the right to dignity and that this right cannot be bound to one's nationality;

- No child may be discriminated against based on his/her own status or that of his/her parents.

- The national education policy requires schools to help the child obtain documentation where there is none. The burden to comply with documentation requirements is shared between parents and the school.

- The documents of a child from a child-headed household must be obtained in a joint effort by the school and the Department of Social Development.

"These responsibilities are in place to ensure that nothing prevents a child from going to school. A school cannot merely reject a child for having no papers," LHR said.

Read more on:    education  |  migrants

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