The challenges of undocumented refugee children in accessing the right to basic education in South Africa

Abstract

South Africa receives a large influx of refugees who flee from their countries of nationality due to the intolerable conditions in those countries, in search of safety for themselves and their children. The documentation process for refugees is strewn with various obstacles a fact which impedes refugee children’s access to basic education and thus prevents the realisation of other rights. This study identifies and evaluates the relevant international and regional legal instruments adopted by the United Nations (UN) and the Organisation of African Unity (OAU) that provide a legal definition of refugees, give guidance on the minimum standards of treating refugees and grant rights to refugees (one of which is basic education). These are the 1951 Convention relating to the Status of Refugees and the OAU Convention Governing Specific Aspects of the Refugees Problems in Africa (1969). Further, it discusses the rights of children in the UN Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of Children (1990), which offer guidance when dealing with refugee children. Moreover, the dissertation will study domestic laws in South Africa that protect refugee children and their right to basic education, particularly the Constitution of the Republic of South Africa, 1996 and the Refugees Act 130 of 1998. In analysing the legal framework, the overarching objective is to investigate whether undocumented refugee children are accessing their right to basic education as provided. The aim is to find if South Africa is under an obligation to ensure that undocumented refugee children access basic education and evaluate domestic laws in the light of international and regional obligations to safeguard refugee children’s access to basic education. This study proposes that South Africa must meet its international, regional and domestic obligations to refugee children through effective implementation; in the application process for refugee status and ensuring admission policies regulating admission to accommodate refugee children.