Some countries have adopted special legal provisions to guarantee migrant children the right to education, regardless of the legal status of the children or parents. However, some countries adopt differential education policies for citizens and non-citizens. This indicator examines if legal provisions in the national laws or an inclusive policy framework exist to ensure equal access to education for children belonging to migrants, refugees, asylum seekers or any non-citizens.
Convention on the Rights of Child, Article 2, 22.1 and 28, General Comment No. 6 (paras. 40-45 ; 63 ; 90) Joint General Comment No. 22 (paras. 6.a, 18, 32.k) and Joint General Comment No.23 (paras. 3, 21, 59, 60-62); Convention on the protection of the Rights of All Migrant Workers and Members of their families, Articles 7, 12.4, 30, 43, 45 ; General Comment No 1 (Paras. 14, 57 and 59), General Comment No. 2 (paras. 75-79), Joint General Comment No. 3 (paras. 6.a, 18, 32.k) and Joint General Comment No.4 (paras. 3, 21, 59, 60-62); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 10, General Recommendation No. 34 (paras. 43 and 44), General Recommendation No. 36 (para. 39.b); International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 2 and 13, General Comment No. 13 (paras. 6, 16.e and 34), General Comment No. 20 (para. 30); International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 5(e)(v); UNESCO Convention against Discrimination in Education, Articles 1, 2, 3 and 4.
See also RTE, International Instruments - The Right to Education of Migrants, Refugee and Internally Displaced Persons.
See also non-binding instruments :
- New York Declaration for Refugees and Migrants (paras. 32, 79 and 82)
- Global Compact for Migration (para. 31.f)
Specific references :
Committee on the economic, social and cultural rights, General Comment No. 13 (para. 34): ‘The Committee takes note of article 2 of the Convention on the Rights of the Child and article 3 (e) of the UNESCO Convention against Discrimination in Education and confirms that the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status.’
Committee on the economic, social and cultural rights, General Comment 20: Non-discrimination in economic, social and cultural rights para. 30: ‘The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education (...). The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.’
Further, the New York Declaration for Refugees and Migrants (para. 32) and the Global Compact for Migration (para. 31.f) affirm that all migrant children irrespective of the migration status have non-discriminatory access to ‘inclusive and equitable quality education’ based on equality with nationals.
Note that laws / legislative provisions will be more protective than policies. For more information see our webpage ‘What information to look at’ and chapter 6 of the RTE / UNESCO Right to Education handbook.