The beginning of the school year is approaching and unaccompanied minors are left behind and will not be able to enrol school on 1 September. Below is an update on the current situation that threatens to leave many migrants out of school.
Access to education is a fundamental right for all. France has committed itself to respect this right by ratifying the International Convention on the Rights of the Child (CRC). Despite the celebration in 2019 of the 30th anniversary of the CRC, France's commitments to protect all minors, including presumed minors, on its territory are called into question. Many minors face lengthy waits for court decisions, during which they are neither at school nor sheltered, their presumption of minority is not respected.
‘Anyone claiming to be a child should be treated as such’.
UN Committee on the Rights of the Child, Joint General Comment 3/22, Para 32(h).
The presumption of minority is not respected
Minority assessment is an important step in the asylum process for unaccompanied minors: It determines whether or not they will receive protection.
Civil society has warned about the unreliability of these assessments (lack of interpreters, expedited appointments, unqualified professionals). Minors who don't receive robust assessments can find themselves, unjustly, on the street, without protection or access to school. In Paris, the setting up of the Jules Ferry camp, a makeshift squat for hundreds of teenagers, highlights, above all, the precarious situation of these minors, but which the authorities fail to notice as a consequence of their failure to protect these vulnerable children.
When a young person is not recognised as a minor, they have the right to appeal the decision. During this period, the state must take into account the presumption of minority and the best interests of the child.
The UN Committee on the Rights of the Child recalls in a Spanish decision that: ‘it is therefore imperative that there be due process to determine a person’s age, as well as the opportunity to challenge the outcome through an appeals process. While that process is underway, the person must be given the benefit of the doubt and treated as a child. (CRC/C/81/D/16/2017, §12.3).
Protect and educate: The state must take responsibility
The state should take care of the protection and education of a presumed minor until settled by a court.
Despite the hope that one day authorities will act in line with international legal guidance and integrate these minors into the national education system, local associations such as Droit à l'École (video in french) in Paris have filled the gap by supporting them in their schooling and in the preparation of the French language and proficiency level test. The test measures the proficiency of the newly arrived foreign pupils, in their language of origin and in French,the results of which allows the organisation to offer them adapted educational pathways corresponding to their knowledge and skills, and then to be assigned to a school.
However, they must then be assigned to a school, a practice which is far from being systematic.
Court defends schools assignments for presumed minors
Numerous cases recall that a doubt about the age of a migrant is not a sufficient argument to deny schooling to them. The schooling of unaccompanied minors must be respected, even if the minor had a refusal of protection from the child protection services. Case law also recalls that the administration of the academy has the duty to assign a minor, or a presumed one, who has passed a proficiency level test, regardless of his or her nationality or migratory situation.
The resistance of the authorities
Even in cases of recognition of the child status of the migrant, departments (counties) which are responsible for the care of these minors, are not always respecting fundamental rights. The Unaccompanied Minors Mission, which comes under the Directorate of Judicial Protection of Youth, published a report in 2019 which highlights counties disparities in the practices of reception of unaccompanied minors. It is recognised that in some cases, the departments do not comply with court decisions ordering the care and protection of a minor. This situation leads to an increase in the number of legal appeals, on the grounds of failure to respect fundamental rights, most often for lack of accommodation and schooling.
These problems are particularly alarming in the department of Mayotte. The Defenseur des Droits (Human Rights Defender) an independent state institution recently issued a report stating the lack of commitment by France to ensure that the right to education is respected on its territory.
Minors or presumed minors must go back to school in 2020-2021, the Right to Education Initiative and Solidarité Laïque, as well as several other civil society groups, demand that, whatever the nationality and/or migratory status of these minors, the state should assume its responsibilities and respect the right to education, by ensuring that these people can access schooling.
Laure Fletcher, who will soon be graduating with a master's degree in international cooperation in education and training from Paris Descartes University, is working at RTE and Solidarité Laïque as an intern on questions of the right to education in the context of migration. She has been involved in several civil society projects on migrant’s education, in Paris with unaccompanied minors and in a refugee camp in Athens as an educator in an informal kindergarten.