Muddled Messages: Immigration Laws Contradict Constitutional Right to Education

South Africa, in recent years, has witnessed seemingly inexplicable, reoccurring outbursts of xenophobia. Once more, the extent of this scourge was brought to the fore when a well-known public school in Johannesburg circulated, then later withdrew, a blatantly xenophobic letter warning foreign national parents without verified documents that they would be handed over to the police.

Education: Unique Constitutional Right

Education is viewed as an integral tool in the realisation of other key socio-economic rights enshrined in the Constitution. It has the potential to unleash the enjoyment of other human rights and empower people to contribute to and participate meaningfully in a free society.

Through media exposure to constitutional matters and the proliferation of impact litigation, South Africans have begun to understand the simple notion that every child of school-going age has a right to receive a basic education under Section 29 of the Constitution. The right to basic education is unique in that it is “immediately realisable’’, as confirmed by the Constitutional Court in the Juma Masjid Case. This means that it is not intrinsically a right of access subject to internal qualifiers, nor a right formulated to be ‘’progressively realised’’.

Contradictory Laws

Closer scrutiny of legislation governing foreign nationals and schools reveals a worrisome contradiction.

Immigration Act 2002

Section 39 of the Immigration Act 2002 specifically seeks to regulate the operations of learning institutions in relation to ‘’illegal foreigners’’. Essentially, learning institutions are prohibited from “knowingly providing training or instruction to an illegal foreigner’’. The subsequent subsection states that a presumption will be made that training or instruction was permitted to be received by an illegal foreigner, if such a person was found on the institution’s premises. This presumption can be rebutted with evidence to the contrary.

More concerning, however, is the criminal sanction that could potentially be imposed on heads of institutions who flout this particular provision of the Act. The offence of aiding and abetting an illegal foreigner, as set out in Section 42(b)(i), attracts a conviction to a fine and/or imprisonment not exceeding 18 months. In the arising criminal proceedings, it is no defence to assert that, at the time, one was unaware of the illegal status of the person if it can be proved that the status ought to have been reasonably known.

South African Schools Act 1996

The South African Schools Act 1996, in stark contrast, acknowledges school attendance is compulsory for all children from the age of seven until the last school day of the year in which a learner reaches the age of 15 or Grade 9 — whichever occurs first. This affirms the constitutional obligation the state has in providing basic education for all learners of compulsory school-going age. Section 5 of Schools Act requires learners to be admitted to public schools without any form of discrimination.

School Admission Policies

The National Education Policy Act 27 of 1996 requires the Minister of Basic Education to determine policies that are in accordance with the Constitution and do not unfairly discriminate against learners on any ground whatsoever.

The Admission Policy for Ordinary Public Schools in 1998 aims to provide a ‘framework to all provincial departments of education and governing bodies of public schools for developing the admission policy of the school.’ The Admission Policy is applicable to learners who are both citizens and non-citizens of the country. Similarly, provincial school admission policies stress the equal implementation of their core components for both South African and non-South African citizen learners alike. The Gauteng Department Admission Policy acknowledges that no child of school-going age can be refused admission on the basis of whether their parents possess the requisite documentation.

Study permits are usually presented by foreign national learners to gain admission to their school of choice (although those granted refugee or asylum seeker status are not required to produce a study permit). Concessions in admission policies are structured to assist undocumented parents and their minor children.

The first step usually involves obtaining evidence from the Department of Home Affairs that an application to legalise their stay has been made. Failing that, the school has a responsibility to actively guide undocumented foreign national parents on how to go about acquiring the requisite documentation. It should be noted that, ordinarily, minors derive their immigration status from their parents. Increasingly, the disconnect between the Department of Home Affairs and the Department of Education has resulted in schools assuming a ‘’no study, no admission’’ default stance. In reality, this occurs simply because schools have not been provided clarity on what documentation to accept for admission. Obtaining a study permit is also an arduous task for most, as it is a costly and time-consuming process. One has to provide, among other things, proof of medical aid. A particular onerous stipulation is the mandatory payment of VFS fees upon application.

Most importantly, children of undocumented foreign nationals are always entitled to be admitted to the school. Even though the nature of the learner’s admission is might seem temporary and reliant on his or her parents obtaining documentation, it is unconscionable that learning institutions would threaten undocumented foreign nationals with police action and in turn compromise such learners’ right to education.

As South Africa’s supreme law, the Constitution is glaringly unequivocal on the right to education regardless of a child’s immigration status — and yet there appears to be a lack of certainty around how this right applies to those learners of undocumented foreign national parents.

The wording of Section 39 of the Immigration Act is especially problematic. A declaration of invalidity by the Constitutional Court, and a subsequent Parliamentary repeal of this section should be considered to ensure that public learning institutions wholly understand and operate within the confines of the Constitution — without apprehension of being subjected to the consequences of contravening a manifestly unconstitutional statutory provision.

By Zah’Rah Kahn, edited by Tina Power

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