10 Sep 2020 - by A4ID

Analysing and Enforcing Migrants’ Rights to Education

Together, A4ID’s partners have identified the prevailing barriers to achieving Sustainable Development Goal (SDG) 4, which targets inclusive and equitable quality education for all.

Through A4ID, the Right to Education Initiative has collaborated with leading international law firms to develop a research paper analysing the right to education of marginalised migrant communities.

Barriers to the Right to Education for Marginalised Communities

The right to education is enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. It is reinforced in numerous other international and regional human rights treaties relating to vulnerable groups, such as children, women, people with disabilities, refugees, and migrants; and governed in other contexts by international humanitarian law, including the right to education in armed conflict. The fundamental principles underlying these internationally applicable treaties are synthesised in SDG 4.

Despite this robust international framework, migrants (including asylum seekers and internally displaced persons) are persistently deprived of vital learning opportunities and excluded from national education programmes. The practical, legal, and administrative barriers to education for certain migrant communities have led to the emergence of alarming statistics, indicating that in 2017, only 50% of refugee children were enrolled in primary school education. This figure dropped to less than 25% when surveying the number of refugee adolescents continuing to secondary education.

Many countries that host large refugee populations do not have the adequate infrastructure or public funding in place to provide equal access to quality education for migrant children. Refugee schools often suffer from overcrowding, shorter school hours, a shortage of resources and appropriate learning material, language barriers, and a lack of adequately trained teachers to cater to the specific mental and physical health requirements of children who have often experienced trauma in the form of displacement, family separation, or sexual violation. This lack of equal access to quality education and personal development support among refugee and migrant children limits the opportunities of already disadvantaged communities and adversely affects their enjoyment of other human rights.

Advocating for Universal Access to Quality Education

A4ID’s Development Partner, the Right to Education Initiative, advocates for nations to legally commit to the implementation of the right to education and endeavours to make quality education accessible to all, under national and international law. The Initiative works to ensure that governments are held accountable for any failings to uphold the right to education and aims to empower marginalised communities to claim and enforce their right to education. The organisation’s ultimate goal is to enable children and adolescents of all backgrounds to enjoy the power of learning without fear of discrimination.

As part of its advocacy work, the Right to Education Initiative is an expert contributor to the Global Education Monitoring Report (GEM Report), an editorially independent flagship report published by the United Nations Educational, Scientific and Cultural Organization (UNESCO). To contribute to the development of the 2019 edition of the GEM Report, entitled Migration, Displacement and Education: Building Bridges Not Walls, the Right to Education Initiative was commissioned to produce a paper analysing the status of the right to education of migrants and highlighting the legal and practical barriers to education that migrants face at the national level.

Identifying Strategies to Enforce the Right to Education for Migrant Children

The Right to Education Initiative approached A4ID for assistance with researching the national legal frameworks underpinning the right to education of refugees, asylum seekers, and internally displaced persons across 14 jurisdictions (Argentina, Canada, France, Germany, Greece, Italy, Russia, Saudi Arabia, South Africa, Spain, Uganda, Ukraine, Uruguay, and Uzbekistan). A4ID’s Legal Partners, Allen & Overy, DLA Piper, Onyango & Co Advocates and Orrick supported this research, helping the Initiative to identify and share best practices for enforcing the right to education. These law firms worked with the Right to Education Initiative to compile and analyse national laws, policies and guidelines concerning the right to education of migrant groups and propose strategies for their effective enforcement, which were articulated in a background paper for the GEM Report.

To improve migrant access to education the paper recommends the ratification of, or accession to, all relevant international protocols and conventions by all Nation States, including the International Covenant on Economic, Social and Cultural Rights, currently ratified by 171 State Parties; the Convention on the Rights of the Child, currently ratified by 192 State Parties; and the UNESCO Convention Against Discrimination in Education, currently ratified by 104 State Parties (excluding many countries with large refugee and migrant populations, such as Bangladesh, Cameroon, Chad, China, Colombia, Ethiopia, Kenya, Pakistan, Somalia, South Sudan, Syria, Turkey, the US and Yemen). The paper emphasises that State Parties must take steps to comply with all obligations arising from these conventions and any other relevant international and regional treaties, implementing and enforcing laws and policies that uphold the right to education of migrants. Additionally, the paper recommends the implementation of all UN Human Rights Committee recommendations related to the right to education of migrants. For example, the Committee on the Rights of the Child’s General Comment No. 6, which states that “the enjoyment of the rights stipulated in the Convention [must] be available to all children… irrespective of their nationality, immigration status or statelessness.”

The research undertaken by A4ID’s Legal Partners also assisted the Right to Education Initiative in their contribution to the UNESCO publication: Enforcing the Right to Education of Refugees: A Policy Perspective. The lawyers’ research informed aspects of the policy recommendations articulated in the publication, including reviewing, amending and introducing national policy in alignment with international commitments and obligations; ensuring good access to redress, remedy and justice by means of a robust complaints system to deconstruct discriminatory practices; updating and decolonising curricula; and establishing mechanisms for the recognition of refugee’s prior qualifications, among other suggestions.

The national case studies identified and researched by the Right to Education Initiative, in collaboration with A4ID’s Legal Partners, revealed that countries which effectively enforced the educational rights of refugees sought to establish national legislation that explicitly enshrines concrete and discrete measures specifying national educational goals for refugees. By creating long-term strategies for the systemic integration of migrant children into the national education system, and subsequently society, a number of refugees’ human rights could be safeguarded. This also fosters a culture of tolerance, acceptance and respect, sustaining the ultimate goal of global peace, security and stability.

The Widespread Impact of Collaborative Legal Research

A4ID has assisted the Right to Education Initiative in all aspects of its work including operational matters, such as its evolution to an independent entity and various employment law matters. However, it has been through the Initiative’s programmatic work on the GEM Report that A4ID’s network of lawyers has been able to provide its greatest impact. The annual GEM Report serves as a foundation for evidence-based advocacy to promote progress towards SDG 4, including by convening dialogue on education issues among key decision makers that can affect policy change.

The UN Refugee Agency has conservatively estimated that the number of forcibly displaced people has reached an unprecedented 79.5 million in 2020, 40% of whom are children. With global refugee and migrant populations expanding year on year, ensuring that children and adolescents within these marginalised communities have access to quality education is a considerable development challenge. The Right to Education Initiative’s inputs into the 2019 GEM Report, based on the research of A4ID’s Legal Partners, synthesises evidence from across multiple jurisdictions to provide robust recommendations for States to adequately address this challenge and ensure migrants’ legal right to education – irrespective of their legal or migration status – is realised.

Prior to its support in researching migrant access to education, A4ID assisted the Right to Education Initiative with the 2018 edition of the GEM Report, examining how legal accountability could help to implement and enforce the right to education. In this instance, A4ID facilitated the support of its Legal Partner White & Case with comparative legal research across 10 jurisdictions, namely, Argentina, Brazil, Canada, Colombia, India, Indonesia, South Africa, Slovakia, Sri Lanka and the US. Building on the success of these two projects, the Initiative is now working with a number of A4ID’s Legal Partners to undertake a global assessment of the legal implementation of free and compulsory pre-primary education at the national level in 15 jurisdictions.

The Right to Education Initiative’s meaningful contribution to the GEM Reports demonstrates that, together, the first-class pro bono legal advice and assistance of A4ID’s Legal Partners and the expertise of our Development Partners, can provide invaluable resources to further progress towards the SDGs. The support provided by A4IDs Legal Partners in respect to the Initiative’s research plays a crucial role in advancing progress towards SDG 4, to ensure inclusive and equitable quality education and promote lifelong learning opportunities for all. The work of our pro bono lawyers also advances SDG 8 to promote inclusive and sustainable economic growth, full and productive employment, and decent work for all; SDG 10 to reduce inequalities within and among countries; and SDG 11 to make cities and human settlements inclusive, safe, resilient and sustainable. Perhaps most importantly, the multi-jurisdictional and cross-sector collaboration involved in these joint research projects embodies the focus of SDG 17 to revitalise global partnerships for sustainable development.