The right to education is a fundamental human right that should be accessible to every person, regardless of their legal status within a country. Although asylum seekers are often treated as if they exist outside of the domestic legal framework of rights, benefits and privileges, all children should be given access to an education. In accordance with the Universal Declaration of Human Rights and other international law instruments, refugee children should be given access to free education, at least in the elementary and fundamental stages.
This page outlines the international, regional, and domestic framework for the right to education. Additionally, it highlights some, but not all, of the main issues regarding accessing education for refugee children and provides resources for advocating for the right to education.
The right to education is found in a number of international instruments, including but not limited to the UDHR (Article 26), ICESCR (Article 13), CRC (Articles 28 and 29), CEDAW (Article 10), CERD (Article 5), and the UNESCO Convention Against Discrimination in Education. In order to fulfill its international obligations, a state should provide free compulsory primary education and should not discriminate on grounds of gender, race, religion, ethnicity, language, opinion, disability, or social or economic status. In additional to primary education, states are obligated to provide general access to technical and professional training, as well as opportunities for higher education on the basis of merit.
The UNESCO Convention Against Discrimination in Education explicitly requires states “[t]o give foreign nationals resident within their territory the same access to education as that given to their own nationals,” as stated in Article 3(e). In the 1951 Convention, Article 22(1) requires that states ‘accord to refugees the same treatment as accorded to nationals’ with regards to primary education. It also states that states ‘shall accord to refugees treatment as favorable as possible, and, in any event, not less favorable than that accorded to aliens generally in the same circumstances’ with respect to education other than elementary education. Other instruments listed above describe the right to education as applying to all. This implies that states have an obligation for all refugee children found within their territory.
For additional information on the international framework of the right to education, as is relevant to refugees, please consider:
Regional and domestic law
Many regional instruments also elaborate on the definition of the right to education, and the obligations of signatory states. Refugee organizations working within these regional frameworks should not only consider the state’s international obligations, but also their regional obligations as a source of law and a means for advocacy. In addition to creating additional obligations, some regional instruments include human rights committees and courts that may be utilized as an alternative means of advocacy.
For example, European Union members have regional obligations that extend beyond their international commitments. In 2003, the EU adopted a directive obligating member states to provide refugee children with access to education “under similar conditions as nationals” [Council Directive 2003/9/EC of 27 January 2003]. As a result, organizations may use this directive in support of their advocacy and even have an avenue for filing a complaint against a European Union member state for failing to satisfy its obligations.
In addition, most states implement the right to education through the implementation of domestic legislation. The Right to Education Project is an offshoot of the work of Katarina Tomaševski, the former UN Special Rapporteur on the Right to Education. The project has compiled an extensive country database that includes information on the right to education in domestic constitutions, national implementing legislation regarding costs and minimum age requirements, and much more. This database provides a concise starting point for any domestic or international advocacy supporting the right to education. You may visit the Right to Education Project’s website, referenced below, to find out more about specific regional entities and domestic legislation in your country.
Some issues facing asylum seekers and refugees
Asylum seekers and refugees face many of the same problems as all other children, but there are some issues that are unique to migrant and refugee populations. In many countries, education systems are underdeveloped and underfunded, preventing all children from accessing high-quality education. Additionally many countries are not always able or willing to implement and protect economic and social rights such as the right to education. Asylum seekers and refugees, like other migrant communities, also face a number of additional challenges, such as:
Many undocumented refugees fear sending their children to school will expose the family to immigration police or other repercussions. In some cases, the fear is multiplied by visa, passport, or citizenship requirements, real or rumored. Even in systems where the government recognizes refugees as residents, refugees may face discriminatory admittance policies, high costs, and other hurdles to accessing state sponsored education institutions. In camp situations, refugees often face resource-related issues, such as a lack of qualified and consistent teachers or classroom supplies.
Unfamiliarity with or lack of fluency in the asylum country’s language is one of refugees’ largest hurdles to education. Even in countries where education is free and open to all children within the territory, refugee children often cannot take advantage of such opportunities without first learning the classroom’s official language.
It is important for organizations working with refugees to consider the advantages and disadvantages of offering classes in other languages as opposed to the host country’s official language. In countries with no integration options, it may be best to offer classes in other languages. However, this makes short-term/temporary integration more difficult, and also prevents children from pursuing post-primary education opportunities in the host country. In countries with large refugee populations from multiple countries, organizations and governments frequently struggle with supporting many different languages, or cannot find and fund enough foreign language teachers.
Like many refugees, refugee children may struggle with cultural expectations and differences. Classroom etiquette varies from country to country and may be a significant challenge, further distancing the refugee children from the other children and teachers. Inconsistencies in curriculum and the disruption of the child’s previous education may prevent a smooth transition from one country to the next. Although it may seem minor, the lack of school transcripts or transferability of credit may further prevent a refugee child from being placed in the appropriate level.