The right to education of migrants

The present report is submitted pursuant to Human Rights Council resolutions 8/4 and 44/3. The Special Rapporteur on the right to education, Koumbou Boly Barry, examines the challenges facing migrants in the attainment of their right to education.

Education is both a fundamental human right and a means of achieving other human rights. In accordance with international and regional legal frameworks, States are responsible for ensuring the right to education for all, without exclusion or discrimination. To better fulfil this obligation, States made a joint commitment in the Sustainable Development Goals to ensure universal and equitable education with the objective of leaving no one behind.

However, migrants, while undisputedly entitled to an equal right to education, constantly encounter obstacles to their full enjoyment of this right. Aside from the disruption to education caused by migratory activities, when compared with citizens of receiving States, migrants are often also confronted with additional difficulties in accessing quality education due to language and cultural barriers, financial constraints, incompatible curricula and other factors. Discriminatory legislation and implementation of the right to education of migrants by States further increases their vulnerabilities. The number of international migrants globally reached 281 million in 2020. The possible exclusion from equal educational rights of such a large population is cause for considerable concern.

The present report should be read in conjunction with the Special Rapporteur’s recent report on considering the right to education as a cultural right.¹ In that report, the Special Rapporteur underlined the importance of understanding the right to education as the right of each person to the cultural resources necessary to freely follow a process of identification, to experience mutually rewarding relations his or her life long, to deal with the crucial challenges facing our world, and to engage in the practices that make it possible to take ownership of and contribute to these resources (para. 52). Such an approach requires a number of shifts in perspective, including the need to unlock the cultural potential of groups of people who are severely disadvantaged (para. 14) and the need to respect and protect the right of all persons, including migrants, to participate in educational life (paras. 53–56).

1. A/HRC/47/32. ↩

The Special Rapporteur warmly thanks the student researchers of the Graduate Institute of International and Development Studies, in Geneva, who in the context of their capstone applied research project have assisted the mandate holder in the preparation of the present report.

The right to education of migrants is anchored in a web of international and regional legal frameworks that complement national legislation and ultimately reinforce States’ responsibility to ensure the right to education of migrants.

At the international level, the right to education of migrants is enshrined in the following main instruments:
(a) Universal Declaration of Human Rights;
(b) International Covenant on Economic, Social and Cultural Rights;
(c) Convention on the Rights of the Child;
(d) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;
(e) International Convention on the Elimination of All Forms of Racial Discrimination;
(f) Convention on the Elimination of All Forms of Discrimination against Women;
(g) Convention against Discrimination in Education.

Articles 30 and 45 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families respectively protect the right of access to public preschool educational institutions or schools for the education of children of migrant workers regardless of the regularity of their stay in the State, and for members of the families of migrant workers on the basis of equality of treatment with nationals of the State concerned, while article 3 of the Convention against Discrimination in Education explicitly sets forth the responsibility of States parties to provide “foreign nationals resident within their territory the same access to education as that given to their own nationals”. Although the remaining texts may not explicitly refer to migrants in their provision regarding the right to education, they all uphold the principle of non-discrimination, which implies education for all regardless of the student’s age, residency, race, ethnicity, gender, legal status or nationality.

Article 2 of the Universal Declaration of Human Rights establishes the principle of non-discrimination in the enjoyment of human rights as the entitlement of everyone, which by implication includes migrants, to the rights set out in the Declaration without distinction of any kind. Article 2 of the International Covenant on Economic, Social and Cultural Rights also emphasizes the principle of non-discrimination as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee on Economic, Social and Cultural Rights further clarifies in its general comment No. 20 (2009) that 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. While the Covenant also allows States to enforce rights set out in the Covenant in accordance with the maximum availability of the State’s resources, the Committee nevertheless stresses that “although States parties to the Covenant should accommodate refugees and migrant inflows commensurate with the extent of the maximum resources available, they would not, in principle, be justified in restricting the enjoyment of the essential content of the Covenant rights on the basis of a lack of resources, even when confronted with a sudden and quantitatively significant flow of refugees”.²

2. E/C.12/2017/1, para. 10. ↩

Article 2 (1) of the Convention on the Rights of the Child creates the obligation to give primary consideration to the best interests of children at all times without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s national origin or other status.

While article 1 (2) of the International Convention on the Elimination of All Forms of Racial Discrimination allows for the possibility of differentiating between citizens and non-citizens, the Committee on the Elimination of Racial Discrimination, in its general recommendation No. 30 (2004), stresses that this “must be construed so as to avoid undermining the basic prohibition of discrimination”. The Committee therefore recommends that States “ensure that public educational institutions are open to non-citizens and children of undocumented immigrants residing in the territory of a State party” and “avoid segregated schooling and different standards of treatment being applied to non-citizens on grounds of race, colour, descent, and national or ethnic origin in elementary and secondary school and with respect to access to higher education”.

The above-mentioned texts have created a network of international legislation, while one of the newest international human rights policy frameworks restates the work of over 70 years of international law protecting the right to education of migrants. The Global Compact for Safe, Orderly and Regular Migration restates the principle of non-discrimination and seeks to reaffirm the right to education for migrants, building on and strengthening the existing framework of international human rights law regarding education. Its objective No. 15 calls for inclusive and equitable quality education for migrant children and youth, as well as facilitated access to lifelong learning opportunities, including by strengthening the capacities of education systems and facilitating non-discriminatory access to early childhood development, formal schooling, non-formal education programmes for children for whom the formal system is inaccessible, on-the-job and vocational training, technical education, and language training, as well as by fostering partnerships with all stakeholders that can support this endeavour.

While instruments of international law explicitly or implicitly enshrine education as a basic right for migrants, regional legal frameworks can anchor education rights in a region-specific context.

The right to education of migrants is enshrined in the African Union charters, common position documents, regional economic communities mechanisms and African Union–European Union collaboration frameworks. The universality of the right to education is emphasized in article 17 of the African Charter on Human and People’s Rights, of 1981, and is further affirmed in the context of children in article 11 (3) of the African Charter on the Rights and Welfare of the Child, of 1990, which establishes that States should “provide free and compulsory basic education” for children and “ensure equal access to education for all sections of the community”, indicating a non-discriminatory principle that by implication includes migrant children. The Migration Policy Framework for Africa, of 2018,³ stipulates the responsibility of host countries to implement equal access to education for migrants as for nationals and encourages States to achieve mutual recognition of academic qualifications across the region. It further stresses that education should be provided to migrants in a gender-responsive and culturally appropriate manner.

3. Available at https://au.int/sites/default/files/documents/35956-doc-2018_mpfa_english_version.pdf. ↩

The Regional Migration Policy Framework⁴ of the Intergovernmental Authority on Development also addresses the right to education, recommending the adoption of legislative and policy frameworks to facilitate access by migrant children and youth to, among other things, education. Additionally, the right to education of migrants is elaborated on in African Union–European Union collaboration frameworks, including the Rabat Process, of 2006, the Khartoum Process, of 2014, and the Joint EU-Africa Strategy, of 2015. In particular, the action plan of the Valletta Summit on Migration, of 2015,⁵ demonstrates a shared commitment to increasing access to education for migrants and to “harmonized qualifications in higher education”.

4. Adopted in 2012. Available at www.iom.int/sites/default/files/icp/igad-regional-migration-policy-framework1.pdf. ↩
5. Available at www.consilium.europa.eu/media/21839/action_plan_en.pdf. ↩

In Asia, the right to education of migrants is protected by subregional mechanisms such as the Association of Southeast Asian Nations (ASEAN) and the Eurasian Economic Union. The ASEAN Human Rights Declaration reaffirms the universality of the right to education. The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers⁶ further defines the right to education of migrant workers, noting that the responsibilities of receiving States include facilitating “access to resources and remedies through information, training and education”, while the ASEAN Declaration on Strengthening Education for Out-of-School Children and Youth proposes recognition of basic education certificates in the region. In the Eurasian Economic Union, the right to education of children of migrant workers is set out in article 98 (8) of the Treaty on the Eurasian Economic Union, which stipulates that children of migrant workers originating from a member State to the Treaty and residing in the territory of another member State have the right to education.

6. Available at https://asean.org/?static_post=asean-declaration-on-the-protection-and-promotion-of-the-rights-of-migrant-workers. ↩

In Europe, the right to education of migrants is consolidated in the human rights conventions under the auspices of the Council of Europe and in standards set out in the primary and secondary legislation of the European Union.

The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), for example, guarantees an individual’s right to education in its Protocol No. 1, article 2, which by virtue of article 14 of the Convention, on prohibition of discrimination, also extends to non-nationals residing in the States parties.

The European Convention on Human Rights is complemented by the 1996 revision of the European Social Charter, which requires the States parties to provide free primary and secondary education to children and young persons (art. 17) and vocational training to all persons (art. 10). Article 19 of the Charter calls for promotion and facilitation of the teaching of the destination State’s language to migrant workers and their dependents, as well as of the workers’ native language to their children.

Also under the umbrella of the Council of Europe, by virtue of article 14 (1) of the European Convention on the Legal Status of Migrant Workers, of 1977, documented migrant workers and their families are entitled, under the same conditions as nationals, to general education and vocational training and retraining as well as access to higher education. Likewise, article 14 (2) and (3) of the same Convention requires States parties to facilitate language teaching and to “make efforts” to grant children of migrant workers the same facilities as nationals regarding scholarships.

The Charter of Fundamental Rights of the European Union, of 2000, stipulates in its article 14 the right of everyone to non-discriminatory access to education and to vocational and continuing training, as well as to receive free compulsory education. Discrimination on grounds of nationality is prohibited under article 21.

The right of migrants to education in the American regional framework is anchored in the work of the Organization of American States, and its legal body, the Inter-American Court of Human Rights. The Court relies, in turn, on the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), and the Charter of the Organization of American States.

The American Convention on Human Rights follows the same principle of non-discrimination (art. 1) as other international human rights instruments. This implies, under its article 26, the full realization of their economic, social and cultural rights, including the effective exercise of the right to education at different levels as set out in articles 49 and 50 of the Charter of the Organization of American States, from primary education to adult and vocational education. Building on this, the Protocol of San Salvador reiterates a universal approach to the right to education and specifies the intersection between child rights, the right to work and the right to education by, inter alia, protecting the right to education of minors under the age of 16 and giving it precedence over their right to work (art. 7).

Middle East and North African legal framework

In the Middle East and North Africa Region, the Arab Charter on Human Rights, of 2004, guarantees the right to education and sets the eradication of illiteracy as a binding obligation upon the State. The entitlements of non-nationals follow from the general prohibition of discrimination in article 3 and from a specific prohibition of discrimination in access to primary education in article 41 (2).

Migrants as a broader social group face numerous barriers to the enjoyment of their right to education. Certain subgroups of migrants, however, are disproportionately affected and at a heightened risk of rights violations.

Child migrants. Child migrants often face obstacles in accessing education. They may experience differential treatment based on age, with infants and unaccompanied minors who are about to attain the age of majority not always being entitled to comprehensive services.⁷ Furthermore, the rights of unaccompanied migrant children may be curtailed due to inaccurate age assessment procedures, denying them access to the full spectrum of services to which they should be entitled.⁸

7. See, for example, Laure Fletcher (Right to Education Initiative), “Unaccompanied minors out of school: France must act to protect and grant them access to education”, available at www.right-to-education.org/blog/unaccompanied-minors-out-school-france-must-act-protect-and-grant-them-access-education. ↩
8. See, for example, CCPR/C/HUN/CO/6, para. 49; and CRC/C/81/D/16/2017. ↩

Women and girl migrants. The limited opportunities for women and girl migrants in accessing education are well acknowledged. However, the special needs of migrant women in caregiving roles, particularly isolated migrant teenage mothers, have not yet been sufficiently considered in educational programme design.⁹

9. UNICEF Belgium, The Voice of Migrant and Refugee Children Living in Belgium: What Do You Think?, available at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCRC%2fNGO%2fBEL%2f31130&Lang=en. ↩

Migrants with disabilities. Migrants with disabilities have a twice the risk of exclusion and discrimination, as they have additional support needs that must be addressed in addition to their needs as migrants. European Union legislation, for example, obliges member States to identify persons with disabilities in reception and detention centres, but there is a lack of formally defined procedures to identify and support them and many are identified on an informal or ad hoc basis, or late in the procedure.¹⁰ Migrants with disabilities frequently find themselves at the margins of the educational system, with severely limited access to education,¹¹ since mainstream public education is often inaccessible and incapable of integrating this population.¹²

10. See www.edf-feph.org/newsroom-news-eu-must-protect-rights-refugees-and-migrants-disabilities/. ↩
11. See, for example, CRPD/C/GRC/CO/1, para. 34. ↩
12. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/LBN/INT_CRC_NGO_LBN_27105_E.pdf, at p. 6; and www.un.org/development/desa/disabilities/refugees_migrants_with_disabilities.html. ↩

LGBTQIA+ migrants. Discriminatory treatment of migrants with different gender identities and sexual orientation is, on the other hand, addressed very infrequently, and few observations exist on the state of their right to education.

Forced migrants. Forced labourers and migrant workers in exploitative contractual relations are equally limited in their enjoyment of fundamental human rights.¹³

13. See, for example, International Centre for Trade Union Rights submission, available from www.ohchr.org/EN/HRBodies/UPR/Pages/UPRSAStakeholdersInfoS31.aspx. ↩

Migrants in irregular situations. Migrants in irregular situations also face difficulties in accessing education due, inter alia, to a lack of required documentation, or to the obligation on schools to inform the authorities about the migratory status of children.¹⁴ This situation is perpetuated where regularization options for undocumented migrants are non-existent, prohibitively designed, arbitrarily implemented or carry criminal penalties.¹⁵

14. See, for example, CMW/C/ALB/CO/2, para. 49; and Carole Coupez and Laure Fletcher (Right to Education Initiative), “Migrant youth in France face administrative battle to finish their education”, available at www.right-to-education.org/blog/migrant-youth-france-face-administrative-battle-finish-their-education. ↩
15. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=4233&file=EnglishTranslation, at para. 40; and A/HRC/WG.6/28/CHE/3, para. 72. ↩

Migrants in detention. Likewise, migrants subjected to immigration detention find themselves in a particularly vulnerable situation regarding their right to education; access to full-time and mainstream schooling for children in detention facilities may be limited.¹⁶ Furthermore, the overall traumatizing experience of detention can have adverse long-term effects on children’s development and aptitude for learning.

16. CERD/C/POL/CO/22-24, para. 23 (a). ↩

Migrants in early childhood care and education. While access to quality early childhood care and education is inadequate globally, opportunities are drastically restricted for migrant children. Pre-primary education of young migrant children has been severely neglected in migrant response strategies and policies.¹⁷ A study indicates that countrywide responses to the early childhood care and education needs of young refugee and asylum-seeking children have been extraordinarily weak, despite the legal obligation in most countries to serve this population, and that national responsibility and accountability are largely lacking.¹⁸

17. UNESCO, Global Education Monitoring Report 2019, see https://gem-report-2019.unesco.org/chapter/monitoring-progress-in-sdg-4/early-childhood-target-4-2/. ↩
18. Maki Park, Caitlin Katsiaficas and Margie McHugh, Responding to the ECEC Needs of Children of Refugees and Asylum Seekers in Europe and North America (Washington, D.C., Migration Policy Institute, 2018), available from www.migrationpolicy.org/research/responding-ecec-needs-children-refugees-asylum-seekers-europe-north-america. ↩

Migrants in tertiary education. Migrants are disadvantaged in the area of post-secondary education. They may face various legal or administrative obstacles in accessing vocational training or higher education, such as limited regularization options for undocumented adolescent migrants,¹⁹ prohibitive permit requirements depending on age and administrative status,²⁰ challenges regarding skills recognition²¹ or documentation challenges upon enrolment.²² Additionally, language barriers may preclude migrants from accessing professional education.²³ Where the doors of tertiary education are not completely closed to migrants, migrants are often overrepresented in vocational education as compared to university education.²⁴

19. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCRC%2fNGO%2fKOR%2f35867&Lang=en, at para. 18. ↩
20. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCRC%2fNGO%2fESP%2f27130&Lang=en, at pp. 5 and 8. ↩
21. See https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/CAN/INT_CESCR_CSS_CAN_22924_E.pdf, at pp. 14 ff. ↩
22. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=3735&file=FrenchTranslation, at p. 6. ↩
23. Ibid. ↩
24. See, for example, CRC/C/BEL/CO/5-6, para. 38 (a). ↩

The above-mentioned additional vulnerabilities of migrants can have the effect of impeding the enjoyment of their right to education, making targeted support for these populations necessary. Effective protection in this regard must cover these vulnerabilities not in isolation from each other, but as intersectional configurations giving rise to multiple discriminations against migrant populations.

Challenges to the enjoyment by migrants of the right to education can be better understood in the interdependent and interconnected concepts of the availability, accessibility, acceptability and adaptability of education. These four guiding principles, otherwise known as the 4As framework,²⁵ constitute a frame of analysis that can safeguard comprehensive protection of the right to education, including the right to education of migrants.

25. E/CN.4/1999/49, paras. 42–74. ↩

Irrespective of their residency status, migrants have the right to an education that is in accordance with the 4As framework. To fulfil the principles of this framework, education for migrants should be:
(a) Available, meaning that there must be an adequate number of culturally relevant educational institutions and programmes, with sufficient sanitary facilities, training for teachers, teaching facilities, and materials, as well as competitive salaries for teachers, and temporary schools in case of a crisis;
(b) Accessible, meaning that educational opportunities is physically and economically accessible, without discrimination, for migrants, which could require States to provide transportation or grants to low-income families to support the potential costs of education (e.g. for uniforms, school materials);
(c) Acceptable, meaning that education (e.g. the curricula and teaching methods) must be relevant, appropriate and of good quality;
(d) Adaptable, meaning that education should be flexible so that it can adapt to the needs of changing societies and communities and respond to the needs of students, including migrants, within their diverse social and cultural settings.

To ensure an equitable right to education for migrants, not only must the availability and accessibility of educational opportunities for migrants be improved, but the acceptability and adaptability of educational systems to accommodate migrants’ particular needs must also be increased.

The availability of education requires, at its core, the provision of sufficient material, human and monetary resources to be able to offer an education to all persons concerned. As such, it is highly problematic that migrants recurrently find themselves at the margins of public educational systems that have insufficient capacity, for example in the areas of infrastructure and resources.

Migrants are often confronted with education authorities’ insufficient human and financial resources, including limited places in schools²⁶ and preschools, lack of catch-up classes, budgetary shortfalls, and insufficient guidance and training for teachers and education practitioners who work with migrant students, including those in need of psychosocial support and language learning.²⁷

26. See, for example, A/HRC/44/39/Add.1, para. 108. ↩
27. Office of the United Nations High Commissioner for Refugees, United Nations Children’s Fund and International Organization for Migration, “Access to education for refugee and migrant children in Europe”, available at www.iom.int/sites/default/files/press_release/file/access-to-education-for-refugee-children.pdf. ↩

Furthermore, availability of education may be limited in – as well as near – reception centres for asylum seekers; for example, the European Commission against Racism and Intolerance observed in 2015 that kindergartens in Norway were not available in all reception centres.²⁸

28. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=6412&file=Annexe2, at para. 58. ↩

The lack of capacity in educational institutions may also manifest itself in a shortage of specialized teachers with intercultural training to meet the needs of students with disabilities, as in the case of Italy where NGOs reported that foreign students with disabilities were faced with a lack of trained school staff, a shortage of cultural mediators specializing in disability issues, and poor access to information for families.²⁹

29. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=6412&file=Annexe2, at p. 37. ↩

This situation may be brought about and worsened by public budgeting that does not adequately take into account the vulnerable position of migrants. Furthermore, austerity policies may disproportionately target educational programmes for immigrant populations; also, governmental licensing practices for educational institutions may determine the level of availability of education for migrants. In Hungary, for instance, NGOs reported that only temporary operating licences were granted for educational programmes for asylum seekers in transit zones.³⁰

30. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/HUN/INT_CRC_NGO_HUN_40918_E.pdf, at p. 35. ↩

Even where educational opportunities are abundantly available, this may not necessarily equate to non-discriminatory and equitable availability to all population categories. In fact, migrants commonly encounter financial, physical, legal and administrative or procedural barriers when attempting to access and claim public services such as education.

Migrants are at a disproportionate risk of poverty, due to limited employability, labour exploitation and exclusive social welfare systems in host countries. Furthermore, although migrants should be entitled to access free primary education under the same terms as nationals, discriminatory tuition fees may at times be charged on the grounds of their non-national status,³¹ causing additional financial pressure that hinders their enjoyment of an equal right to access education.

31. See, for example, A/HRC/44/39/Add.1, para. 59. ↩

Poverty severely affects the ability of certain categories of migrants to pay for their education. Migrants without legal residency have little employability, thus creating difficulties in paying for their children’s school-related costs.³² Migrant workers may be at high risk of labour exploitation, including low salaries, non-payment of salaries³³ and punitive deduction of salaries. Additionally, social welfare systems that link the provision of education to migrants’ employment history and migration status may exclude migrants from equally accessing benefits to maintain a decent life. NGOs report that in Germany, for example, intra-European Union migrants unable to provide verification of previous labour market activities are excluded from social benefits.³⁴

32. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/LBN/INT_CRC_NGO_LBN_27105_E.pdf, at p. 3. ↩
33. A/HRC/WG.6/27/POL/3, para. 80. ↩
34. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fDEU%2f32398&Lang=en, at p. 22. ↩

Depending on the country context, non-citizens may be faced with discrimination where free education is provided for nationals. For example, NGOs report that in the Republic of Korea, only children with nationality of the Republic of Korea are entitled to free day-care centres and kindergartens,³⁵ and in Denmark, where higher education is free for nationals, refugees are not equally entitled to it.³⁶

35. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/KOR/INT_CRC_NGO_KOR_33152_E.pdf, at p. 8. ↩
36. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fDNK%2f37045&Lang=en, at p. 15. ↩

Furthermore, despite the fact that migrants often need support to overcome financial constraints to accessing education, the provision of such assistance remains infrequent. NGOs have reported, for example, that in Canada, financial support such as student loans and State-sponsored scholarships is not available for non-national students.³⁷ Additionally, migrants may face challenges in meeting the financial requirements for other costs of education, such as education materials, uniforms, supplies, and transportation.³⁸

37. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fCAN%2f22924&Lang=en, at pp. 14–15. ↩
38. See, for example, CRC/C/LBN/CO/4-5, para. 34. ↩

Access to education can also be hindered by the physical characteristics of the environment in which migrants find themselves.

In borderlands, asylum-seeking children often lack access to education. The general lack of human rights enforcement in these transit spaces contributes to making education inaccessible. For instance, in 2018 the Committee on the Rights of the Child expressed concern over the automatic pushback, without the necessary guarantees, of unaccompanied children seeking international protection in the autonomous cities of Ceuta and Melilla, Spain.³⁹ This lack of procedure fails to ensure respect for human rights, and in this case, violates the principle of the best interests of the child, and the children’s right to education. In Hungary, although unaccompanied children under the age of 14 years are not to be detained, reports have noted the presence of unaccompanied children in these transit spaces, in breach of domestic legislation.⁴⁰ Furthermore, the lack of time limits on procedures for policing asylum seekers in border areas amounts to a physical barrier to access by migrants to education.⁴¹ As the detention can last for weeks, there is no provision specifying when these migrants can access education.⁴² Therefore, the lack of human rights enforcement in border and transit spaces creates physical barriers to access by migrants to education. Among the transit spaces, detention facilities have been identified as a particularly vulnerable and hostile environment for migrants to access education.⁴³

39. CRC/C/ESP/CO/5-6, para. 44. ↩
40. CRC/C/HUN/CO/6, para. 38 (a–e). ↩
41. Ibid., para. 38 (b). ↩
42. Ibid. ↩
43. See for example, CERD/C/POL/CO/22-24, para. 23 (a). ↩

Similar to the threats created in the process of migrants accessing education, accessing ancillary school facilities can be an additional challenge that migrants have to face. For example, in Lebanon it was reported that Syrian students were sometimes denied access to sanitation facilities.⁴⁴ In Italy, certain local councils banned access to school canteens for children of foreign origin.⁴⁵ These additional spatial restrictions contribute to an inaccessible and hostile learning environment for migrants, which ultimately prevents them from enjoying their right to education.

44. See www.hrw.org/sites/default/files/report_pdf/lebanon0716web_1.pdf, at p. 58. ↩
45. See www.thelocal.it/20181214/lodi-school-lunch-subsidies-immigrants-discrimination/. ↩

Legislative and implementation challenges

In terms of equal participation in education, migrants are faced with multiple obstacles. More specifically, from a legislative perspective, the difficulties are characterized by: (a) restrictive migration legislation that increases the risk of criminalization of migrants and constitutes a fundamental challenge to migrants’ human rights, including the right to education; (b) discriminatory provision of education on the basis of the nationality and migration status of children and their parents; (c) legislation that excludes migrants from the same rights enjoyed by citizens to access education; and (d) rigid requirements for enrolment documentation.

The extent to which national migration law develops varies greatly across the globe, thus constituting different levels of fundamental challenges for migrants to enjoy their human rights, including the right to education.

There is a lack of clarity in legal provisions to ensure the protection of the most vulnerable. For example, the Committee on the Rights of the Child has expressed concern that migration law in Chile lacks direct reference to the rights and guarantees of children.⁴⁶

46. CRC/C/CHL/CO/4-5, para. 77. ↩

Furthermore, in countries with relatively sophisticated migrant legislation, legal backtracking and restrictive articles pose challenges to a large number of migrants. For example, Italy has abolished “humanitarian protection” through its Law 132/2018, resulting in the irregularization of asylum seekers who had been eligible for this status.⁴⁷ Furthermore, it is reported that in both Italy and Denmark, when unaccompanied minor asylum seekers turn 18, their residence permit is withdrawn, which causes uncertainties around the continuation of their studies.⁴⁸

47. A/HRC/WG.6/34/ITA/3, para. 85. ↩
48. See www.asylumlawdatabase.eu/en/content/country-profile-denmark; and https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/ITA/INT_CRC_NGO_ITA_33352_E.pdf, at p. 2. ↩

The right to education of migrants is not fully enshrined in relevant national laws, and is often not comparable to the rights enjoyed by citizens. In the Republic of Korea, where the Framework Act on Education states that “citizens” have a right to receive compulsory education, it is reported that the notice of enrolment is not delivered to migrant families, that enrolment of migrant students in elementary and secondary education is at the discretion of principals, and that undocumented migrant children do not have access to higher education and are subject to deportation after they graduate from secondary school.⁴⁹ In terms of access to preschool, asylum seeker children in Norway do not have the same legal rights as citizens.⁵⁰ Furthermore, as the right to upper secondary education depends on having a residence permit to live in Norway, unaccompanied minors turning 16 cannot attend school anymore on account of the Dublin Regulation, in which it is stipulated that when unaccompanied minors reach the age of 16, they are no longer entitled to residency in host countries.⁵¹ In Spain, the law does not allow unaccompanied minors to access vocational education and training without a work permit.⁵²

49. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/KOR/INT_CRC_NGO_KOR_33150_E.pdf, at para. 116. ↩
50. A/HRC/WG.6/33/NOR/3, para. 87. ↩
51. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fNOR%2f32995&Lang=en, at para. 265. ↩
52. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fESP%2f30248&Lang=en, at p. 8. ↩

Discriminatory access based on the migration status of the learner or their parents

Migrants may face discriminatory admissions practices based on their or their parents’ nationality or migration status. For instance, in Switzerland, young persons without legal status are only allowed legally to finish their basic education, including basic vocational training, if they have been in compulsory education for more than five years without interruption.⁵³

53. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=4233&file=EnglishTranslation, at para. 41. ↩

Furthermore, children of foreign parents, especially of those without legal status, may face discriminatory enrolment practices.⁵⁴ For example, it has been reported that in the Russian Federation enrolment of migrant children in early grades commonly takes place only after the enrolment of Russian children, in other words only if there are free spaces left.⁵⁵

54. CMW/C/ALB/CO/2, para. 49. ↩
55. See https://tbinternet.ohchr.org/Treaties/CMW/Shared%20Documents/AZE/INT_CMW_ICS_AZE_32113_E.pdf, at p. 5. ↩

Lack of documentation (including birth certificates, previous school records, documents proving family relationships, and so on)

Migrants without legal documentation required by the host country for access to education, including birth certificates, proof of family relations, previous educational records and certificates, valid residency cards, passports and so on face additional challenges, as such documents are often lost during the migration process or are difficult to acquire. Documentation challenges to accessing secondary and higher education can be intensified due to the requirement in some countries to present one’s birth certificate to qualify for entrance exams. Additionally, undocumented migrants may be fearful of being reported to local authorities and deported,⁵⁶ thus they are indirectly discouraged from accessing education. Furthermore, children born to undocumented migrant parents in territories of certain host countries have limited pathways to birth registration.⁵⁷

56. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=4233&file=EnglishTranslation, at para. 42; https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/ITA/INT_CRC_NGO_ITA_33354_E.pdf, at p. 17; https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/DEU/INT_CESCR_CSS_DEU_32476_E.pdf, at p. 19; and CMW/C/ALB/CO/2, p. 49. ↩
57. See, for example, E/C.12/KAZ/CO/2, para. 48 (e). ↩

Migrants may also face complex procedures to enrol in education facilities, in comparison with citizens, further limiting the number of non-citizen children participating in education. In Morocco, for example, it was reported that migrant families sometimes had to rely on assistance from NGOs to complete the enrolment process, due to its complexity.⁵⁸

58. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=3735&file=FrenchTranslation, at p. 5. ↩

Reliable, timely and accessible data and evidence are essential for monitoring the development of legislation and the implementation of the right to education of migrants, based on which constructive recommendations can be formulated to ensure the full enjoyment of their human rights. However, what data is available is not always disaggregated in terms of migration status, age, gender, and school enrolment. This impacts negatively on the ability of governments to formulate targeted policies to implement the right to education of migrants. Without relevant data, specific groups of vulnerable migrants are not included in national planning activities, nor in economic and social indicators. Furthermore, a lack of gendered data affects assessment of the effectiveness of policies on promoting girls’ and women’s rights to education.

The legal entitlement of migrants to education is not exhausted as soon as they are able to enter a classroom. It is an important stipulation of the 4As framework that education also has to be “acceptable”, meaning that quality standards for education provision have to be met and that educational design has to fit with the migrants’ backgrounds to a degree that this population is actually enabled to participate in education.

However, migrants frequently face hurdles in accessing quality education, often due to the limited educational opportunities extended to certain migrant populations and a lack of migrant-oriented teacher training, professional development and qualifications, as well as the disconnect between educational programme design and the difficult learning environment migrants might find themselves in. It is reportedly for these reasons that migrant students or descendants of immigrants often display higher illiteracy,⁵⁹ repetition, school dropout⁶⁰ or non-completion rates⁶¹ as well as lower attainment levels in education, as compared to citizen peers.⁶²

59. See, for example, CEDAW/C/JOR/CO/6, para. 41 (b). ↩
60. See, for example, CRC/C/LBN/CO/4-5, para. 34 (a). ↩
61. See, for example, CRC/C/ESP/CO/5-6, para. 39. ↩
62. See, for example, CERD/C/NOR/CO/23-24, para. 19. ↩

Lack of migrant-oriented teacher qualifications

Low-quality educational opportunities for migrants may also be connected to a lack of adequate teacher training, which would have otherwise enabled educators to address migrant-specific needs.⁶³ For example, NGOs reported that some adolescents in reception centres in Norway were – depending on the local implementation approach – offered language classes given by unskilled teachers.⁶⁴

63. See www.unicef-irc.org/publications/pdf/Lifting-Barriers-to-Education-During-and-After-COVID-19-Improving-education-outcomes-for-migrant-and-refugee-children-in_LAC.pdf, at pp. 6 and 22. ↩
64. Fafo, “A safe place to wait: care practices in reception centres for unaccompanied minor asylum seekers”, available at www.fafo.no/zoo-publikasjoner/summaries/item/a-safe-place-to-wait. ↩

Adequate and migrant-oriented teacher training should include – inter alia – foreign language skills,⁶⁵ skills in second-language teaching, intercultural and diversity skills,⁶⁶ and intersectional configurations of the above (e.g. cultural mediators specializing in disability issues).⁶⁷ In the same vein, observations and recommendations on the curricula for teacher training increasingly underline the importance of integrating human rights education⁶⁸ or training on combating racism and racial discrimination.⁶⁹ In order to support the further training of teachers, uniform regulations for scholarly practices and treatment standards⁷⁰ as well as extensive admission to training options should be ensured. Improved migrant-oriented teacher training will be a central building block for the provision of high-quality education for migrants.

65. See https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/HUN/INT_CERD_NGO_HUN_34524_E.pdf. ↩
66. E/C.12/NOR/CO/6, para. 44 (e). ↩
67. A/HRC/WG.6/34/ITA/3, para. 58. ↩
68. Ibid. ↩
69. See, for example, the report on Albania by the European Commission against Racism and Intolerance, para. 47, available at https://rm.coe.int/fifth-report-on-albania/16808b54ea. ↩
70. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/PRT/INT_CRC_NGO_PRT_33246_E.pdf, p. 7. ↩

Consideration of migrants’ basic needs in programme design

Furthermore, quality education for migrants should be designed to mitigate the difficult learning environment that migrants might find themselves in, as well as to address related basic needs, thereby enabling migrants to actually thrive in education and participate in educational life.

The performance of school-aged migrant children is also particularly impeded when migrant parents, as their support network, have difficulties offering assistance due to language and cultural barriers and feelings of estrangement from educational institutions.⁷¹ To address this, a good practice put in place by some countries, including Portugal⁷² and Malta,⁷³ is to provide “multi-level support” for migrant parents, such as translated materials or language support.

71. See, for example, the report on Norway by the European Commission against Racism and Intolerance, para. 60, available at https://rm.coe.int/fifth-report-on-norway/16808b597d. ↩
72. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=6392&file=EnglishTranslation, at p. 7. ↩
73. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5545&file=EnglishTranslation, at p. 5. ↩

Migrants often face additional challenges in accessing the same quality of education as their national peers. This failure to ensure equality in education creates segregated forms of education, marginalizing migrants in particular. Migrants may be segregated in terms of their right to education due to the legal constraints imposed by States, or by certain conditions that create systemic and informal distinctions between the education enjoyed by migrants and that enjoyed by nationals.

In terms of legally induced segregation in education, migrants encounter special challenges to being included and treated as equals in the national educational system. For migrants, the State’s lack of recognition of school certificates issued in source countries or transit zones,⁷⁴ the lack of interaction with citizens of the destination country (children),⁷⁵ the lengthy duration of introductory and language classes⁷⁶ and overall difficulties in joining regular schools⁷⁷ contribute to segregating migrants from nationals.

74. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/HUN/INT_CRC_NGO_HUN_40918_E.pdf, at p. 35; and CRC/C/HUN/CO/6, para. 38 (a–e). ↩
75. See https://tbinternet.ohchr.org/Treaties/CMW/Shared%20Documents/AZE/INT_CMW_ICS_AZE_32113_E.pdf, at p. 6; https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/BEL/INT_CRC_NGO_BEL_31130_E.pdf, at p. 113; and https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fDEU%2f32153&Lang=en, at paras. 55–56. ↩
76. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5545&file=EnglishTranslation, at p. 5; and https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/DEU/INT_CESCR_NGO_DEU_31865_E.pdf, at p. 11. ↩
77. See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fDEU%2f32153&Lang=en, at paras. 55–56; and https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/MEX/INT_CESCR_CSS_MEX_30340_E.pdf, at p. 5. ↩

Lack of a specified duration of introductory or language classes for migrants can potentially decrease the chances for migrants to join mainstream education.⁷⁸ To avoid this scenario, Norway has developed an exemplary programme to ensure migrants’ right to education. Students with a mother tongue other than the official languages of Norway have access to additional Norwegian lessons adapted to their needs until they are proficient enough to attend regular classes.⁷⁹ Local authorities also have the possibility of organizing education in separate groups, classes or schools for recently arrived students, with a two-year limit and by consent of the child or their parents only.⁸⁰

78. Global Education Monitoring Report, Migration, Displacement and Education: Building Bridges, Not Walls, p. xviii, available at https://reliefweb.int/sites/reliefweb.int/files/resources/265866E.pdf. ↩
79. See the report on Norway by the European Commission against Racism and Intolerance, para. 59, available at https://rm.coe.int/fifth-report-on-norway/16808b597d. ↩
80. Ibid. ↩

While States can have an impact in shaping restrictions on migrants’ right to education, segregation may also result from existing conditions that perpetuate inequalities between migrants and nationals. Migrants are often overrepresented in vocational education and have lower qualification levels compared to nationals, reflecting larger socioeconomic challenges such as reduced opportunities to complete secondary and tertiary education. In Germany, for example, there are a third fewer non-German youth who attain qualifications required to enter higher education, and non-German youth are more likely to leave school without a secondary school diploma than young Germans.⁸¹

81. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5294&file=EnglishTranslation, paras. 4–13. ↩

Reflecting larger issues of inequality, migrants may face segregation issues due to the link between their residence and educational opportunities.⁸² In the United States of America, for example, the school funding system is reported to be primarily based on local taxes, which creates a system that strengthens economic disparities.⁸³ As migrants tend to live in low-income communities, they do not benefit from the same access to and standard of education as wealthier communities. In fact, in low-income areas, schools depend almost exclusively on government funding (unlike wealthier areas which benefit from private funding), which tends to be significantly lower than the funding in wealthy areas. These socioeconomic disparities, particularly affecting migrants, lead to a higher dropout rate and fewer students going on to higher education.

82. See, for example, E/C.12/ESP/CO/6, para. 46; https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=7692&file=EnglishTranslation, at p. 4; and https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fCSS%2fDNK%2f37034&Lang=en. ↩
83. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=7692&file=EnglishTranslation, at p. 4. ↩

To guarantee enjoyment, to the fullest extent, of the right of migrants to education, accessible and acceptable educational programmes also have to be adaptable, meaning that they should also aim to integrate migrants’ needs beyond merely ensuring them a basic level of participation in education, in order to achieve a more holistic educational and societal inclusion of migrants. Obstacles to full implementation of migrants’ right to education in terms of adaptability exist as regards educational content and fundamental values.

The adaptability of education is – inter alia – facilitated or inhibited by the content of the educational programmes that migrants are attending. Curricula, as well as the language policies adopted in mainstream education, are major choices in this regard, which must adequately take into account the specific needs and fundamental rights of migrants.

The curricula of mainstream education can be powerful tools in strengthening the protection of migrants’ rights and promoting their integration into society. To strengthen empathy, solidarity, the protection of migrants’ rights, and social cohesion, national mainstream curricula should embrace education on human rights, including children’s rights, and on cultural diversity. A lack of human rights, child rights or intercultural education in the curriculum has been highlighted as problematic in a number of countries.⁸⁴

84. See, for example, https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/ESP/INT_CESCR_CSS_ESP_30397_E.pdf, at p. 31; and CRC/C/KAZ/CO/4, para. 52. ↩

Even worse, there are reports in some countries of curricula that elicit effects to the contrary, where migrants experience misrepresentation or assimilationist pressures. For example, Portuguese textbooks and school materials have been criticized by national NGOs for perpetuating racist and Islamophobic stereotyped discourses, which would leave Muslim and African children and children of African descent with a unidimensional historiography and without positive examples of their respective backgrounds.⁸⁵ Similarly, in Germany, educational materials have been called out by government-initiated research for hegemonically representing migration issues in “conflictual” and “crisis” terms, as well as for underrepresenting diversity in society.⁸⁶

85. See https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/PRT/INT_CRC_NGO_PRT_35800_E.pdf, at p. 3. ↩
86. See https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/DEU/INT_CESCR_NGO_DEU_31865_E.pdf, at p. 25. ↩

Apart from curricula, the language of instruction, and inadequate language support programmes, can be major obstacles to the enjoyment by migrants of the right to education.⁸⁷ Migrants may be discriminated against in access to education in their mother-tongue. For example, in 2019, the Committee on Economic, Social and Cultural Rights expressed concern over the policy of the Government of Denmark on bilingual education, which limited access to mother-tongue instruction to students of European backgrounds only, while not allowing the same advantage to third-country nationals.⁸⁸

87. See, for example, E/C.12/SDN/CO/2, para. 25. ↩
88. E/C.12/DNK/CO/6, para. 68. ↩

Multilingual education policies that encourage linguistic diversity, address language use in schools and provide language support for migrant learners are key to their full integration into mainstream education.

Given how critical the support of parents is to the success of children’s education outcomes,⁸⁹ it is similarly important to consider migrant parents’ language barriers, which may undermine a solid support network for their school-aged children.⁹⁰ Providing these parents with appropriate language support will allow them to be more involved in the educational process and the school system and to better support their child or children’s learning.

89. See www.oecd-ilibrary.org/sites/08735967-en/index.html?itemId=/content/component/08735967-en. ↩
90. See, for example, the report on Norway by the European Commission against Racism and Intolerance, para. 60, available at https://rm.coe.int/fifth-report-on-norway/16808b597d. ↩

The role of migrant education in society is more than teaching migrants basic literacy skills. Migrant education also plays a significant role in forming a productive, cohesive and harmonious society that allows the inclusion of migrants into society.⁹¹

91. Global Education Monitoring Report, Migration, Displacement and Education: Building Bridges, Not Walls, pp. 77–93, available at https://reliefweb.int/sites/reliefweb.int/files/resources/265866E.pdf. ↩

To ensure the adaptability aspect of the right to education of migrants, the norms and values embedded in educational opportunities must be inclusive, equal, respectful of migrants’ individual rights, multicultural or intercultural, and free from discrimination.⁹² Nevertheless, migrants are often exposed to various forms of discrimination such as xenophobia, Islamophobia, hate speech, stereotyping, stigmatization, discrimination, racism and bullying, which may ultimately jeopardize their right to education.⁹³ In some cases, harassment and discrimination have been documented to even lead to dropping out of school.⁹⁴

92. Ibid. ↩
93. See https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/NRU/INT_CEDAW_NGO_NRU_26392_E.pdf, at pp. 7–8; https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCRC%2fNGO%2fNRU%2f24870&Lang=en, at p. 2; and CRC/C/NRU/CO/1, para. 50 (b). ↩
94. See, for example, CERD/C/ECU/CO/23-24, para. 33; and CRC/C/NRU/CO/1, para. 50 (b). ↩

Although host populations, students and teachers can be perpetrators of discrimination, racism, xenophobia, harassment, stigmatization and stereotyping, institutions also have a role in shaping discriminatory behaviour towards migrants. Whether through media stereotyping of migrants, public validation of hate speech, States’ dissolution of bodies on racial discrimination, States’ active silencing of any recognition that violence against migrants may be of a racist or xenophobic nature, or, more broadly, social institutions perpetuating institutional racism, entities can also create systemic forms of discrimination that affect the dignity of migrants and discourage migrants from claiming and enjoying their right to education. For example, in 2019 the Committee on the Elimination of Racial Discrimination expressed alarm at reports that statements made by public officials as part of a government’s anti-immigrant and anti-refugee campaign promoted racial hatred against migrants.⁹⁵

95. CERD/C/HUN/CO/18-25, para. 16. ↩

Strengthening State promotion of the integration of migrants into society is a good solution for combating discrimination and xenophobia against migrants.⁹⁶ State support of cultural diversity and multiculturalism can be used to counter racism, xenophobia and discrimination. These multicultural values should be embedded in the guiding principles of educational policies. For instance, Argentina includes intercultural education and recognition of ethnic diversity in its education system.⁹⁷ A number of countries in Europe use Intercultural Bilingual Education as an educational model, which attempts to provide pertinent education to migrants by including diversity and intercultural education as core elements of its general principles and objectives.⁹⁸

96. See, for example, A/HRC/WG.6/34/BOL/3, para. 89. ↩
97. A/HRC/37/5, para. 107.113. ↩
98. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=2213&file=EnglishTranslation; see also Geraldine Abarca Cariman, “Intercultural bilingual education: education and diversity” (UNESCO, 2015). ↩

Furthermore, teachers’ understanding of multicultural values and of challenges faced by migrants has been recognized as an important factor in safeguarding an inclusive education adapted to migrants’ needs. This recognition can be evidenced in efforts to ensure diversity in the teaching body. In Norway, for example, the Government has actively pursued increased recruitment of teachers with migrant backgrounds as a way to improve and strengthen multicultural education.⁹⁹ Similarly, in Denmark, the Ministry of Education recommends that municipalities employ bilingual teachers with immigrant backgrounds in schools with high proportions of immigrant students.¹⁰⁰

99. Mette Torslev and Anne Sofie Børsch, “Refugee and immigrant children’s right to education: a comparative analysis of education policies targeting immigrant children in the Nordic countries”, November 2017, p. 38. ↩
100. Ibid., p. 26. ↩

While in some countries the recruitment of foreign teachers has made education more adaptable towards migrants’ needs and has strengthened multicultural values,¹⁰¹ other States choose to exclude any employment of foreign teachers in their national educational system.¹⁰² For example, it is reported that in Jordan, the Closed Sector Law prevents non-nationals from working in certain fields, including education, by implication leaving qualified Syrian teachers out of work and not practising their profession.¹⁰³ The lack of opportunities for non-national teachers reflects broader multicultural challenges that may hinder the availability, accessibility, acceptability and adaptability of education for migrants.

101. See, for example, the report on Norway by the European Commission against Racism and Intolerance, para. 56, available at https://rm.coe.int/fifth-report-on-norway/16808b597d; and https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCRC%2fNGO%2fLBN%2f27105&Lang=en, at pp. 4–7. ↩
102. See, for example, https://tbinternet.ohchr.org/Treaties/CMW/Shared%20Documents/TJK/INT_CMW_NGO_TJK_28520_E.pdf, at p. 2; https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/JOR/INT_CERD_NGO_JOR_29369_E.pdf; https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5633&file=EnglishTranslation, at para. 9; and https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5815&file=EnglishTranslation, at para. 1.2. ↩
103. See https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=5633&file=EnglishTranslation. ↩

To paraphrase former Secretary-General Ban Ki-moon in his remarks to the 2013 High-level Dialogue on International Migration and Development, migration is an expression of the human aspiration for dignity, safety and a better future. It is a fundamental part of our globalized world, and it is our collective responsibility to make migration work for the benefit of migrants and countries alike.

Part of this responsibility entails ensuring respect for the right of migrants to education, as this basic human right is indispensable for the exercise of other rights. To ensure full respect for the right to education of migrants, the principles of the availability, accessibility, acceptability and adaptability of education must be considered and fulfilled interdependently in all aspects of the migrant’s educational journey in order to tackle the challenges migrants face in enjoying their right to education.

These principles should be complemented by an intersectional approach to discrimination, since migrants often face a combination of more than one of the following identities which can be a source of discrimination: being female, LGBTQIA+, children, older persons, persons with disabilities, persons with mental health issues, persons living in remote areas, persons living in poverty, religious, linguistic, national or ethnic minorities, indigenous people, forced migrants, persons enduring forced labour and/or exploitation, victims of trafficking, and so on.

Although international human rights instruments prohibit discrimination based on these grounds, attention must also be given to multiple discriminations against migrants based on a combination of such grounds.

To ensure the strong and encompassing protection of the right to education of migrants, States must work in collaboration with other relevant stakeholders to develop educational policies and programmes for migrants in line with the principles of the 4As framework and should complement these principles with an intersectional approach to human rights and discrimination.

The following recommendations, to be read in conjunction with the recommendations of the Special Rapporteur in her report on the cultural dimensions of the right to education,¹⁰⁴ are addressed to States and other relevant stakeholders.

104. A/HRC/47/32. ↩

States should ensure that comprehensive policy, legal and funding frameworks are adopted or improved upon to provide all stakeholders with a clear vision of potential educational opportunities.

In order to strengthen public education provision for migrants, the needs of migrants should be comprehensively assessed and streamlined across educational budgeting and licensing to provide migrant populations with sufficient and timely availability of educational opportunities and specialized educators, within geographical reach. This includes:
(a) Responding to specific geographic needs of migrant populations, by ensuring that spaces in educational institutions, preferably public institutions but also private-managed infrastructure and facilities, are made available to the migrant population. This may entail, where relevant, creating or increasing educational capacity in reception centres.
(b) Ensuring the availability of sufficient educators adequately trained to address mental health challenges and psychosocial support needs of migrants, particularly women and girls, as well as the provision of catch-up and language classes.

If such a system does not already exist, a monitoring system should be put in place to ensure that education provided to migrants complies with international law and national education policies in both public and private institutions.

States should ensure that national legislation guarantees universal and inclusive access for migrants to all levels of education, including pre-primary education, regardless of residential status or nationality. Legislation containing exclusionary entitlements should be evaluated to assess its impact, direct or indirect, on migrants and be revised as appropriate to allow the full enjoyment by migrants of their right to education.

With a view to overcoming financial constraints faced by migrants in accessing education, States should:
(a) Put in place or revise as appropriate, legislation and policies relating to the provision of free education and access to financial support for educational activity so that it is equally accessible to non-nationals; and
(b) Establish or improve, as required, monitoring mechanisms to prevent financial and other types of exploitation of migrant workers.

States should take specific measures to ensure the educational rights of migrant girls and women, including second chance programmes for those who drop out due to pregnancy, child marriage, child labour or other factors.

States should end the practice of detention of migrant minors, and are recommended to scrutinize on a case-by-case basis unaccompanied minors’ prospects of remaining in the country once they have come of age.

States should adopt flexible and simplified policies on school enrolment so that documentation requirements for migrants are not prohibitive and undocumented children have full access to education without fear of being reported to the authorities.

States should take steps to ensure that teachers, including specialist teachers for students with disabilities, receive intercultural training in order to be able to adequately meet the needs of migrant populations.

States should ensure that migrants are offered an education that adheres to set quality standards ensuring their dignity and well-being and that allows for full inclusion and equality, avoiding segregated educational systems. This means that mechanisms and policy frameworks should address and combat State-induced and system-induced forms of segregation that marginalize migrants as regards their enjoyment of the right to education.

States should take immediate legal, policy and practical measures to tackle xenophobia, racism and all forms of discrimination against migrants and other vulnerable groups.

Policies and programmes should be put in place to adequately address difficulties experienced by migrants due to language or cultural barriers, including through the provision, where appropriate, of translation and language support to migrant parents to facilitate their full participation in educational decisions regarding their children.

Guidelines should be established regarding the provision of orientation and language classes for migrants, specifying clear benchmarks, including with regard to the acquisition of necessary country-specific knowledge and the level of language proficiency, for their integration into the regular school system.

Additionally, remedial classes for migrants arriving at the end of a school year should be considered.

In order to safeguard migrant-sensitive education, States should ensure that teacher training institutions include courses, such as language courses and cultural diversity training, in their programmes and provide continuous professional development, to enable the training of teachers with a migrant-oriented skill set.

States should facilitate the recognition of qualifications of migrant teachers, inter alia through the harmonization of teacher qualifications and teaching standards, and ensure that they have the same working conditions and salaries as their local peers.

States are encouraged to adapt, in collaboration with relevant stakeholders, existing educational opportunities to provide multi-level support programmes for migrants and their families (especially for migrant parents of school-aged children) where situational factors arising from the migratory context, such as the adverse learning environment in reception centres, are obstacles to successful participation in education.

States and other relevant stakeholders are also encouraged to develop interaction between host communities and migrants starting from when students are still at a young age in order to foster social cohesion.

States are encouraged to facilitate, as appropriate, the free cross-border movement of students and teachers, including through the harmonization of teaching standards and teacher qualifications.

To ensure the adaptable character of migrant education, States are called upon to revise nationwide curricula and schooling materials to eliminate stereotypical, unidimensional, conflictual, racist and other forms of exclusionary misrepresentation of migrants. This should be carried out in collaboration with all stakeholders, including civil society, teachers and communities, especially migrant communities.

Furthermore, States should expand public curricula and regulate educational opportunities from other suppliers, as needed, to include awareness-raising on safety risks for migrants, and human rights education, child rights education and multicultural education.

Concurrently with their obligations regarding non-discrimination, States, in close cooperation with civil society, should effectively address potential societal backlash to migrant-sensitive adaptations of curricula, for example through evidence-based communication strategies on migration, psychosocial support for host communities, or community-building exercises.

States should consult and, where possible, partner with migrant organizations and other relevant stakeholders to ensure that educational curricula respect and promote migrants’ cultural rights.

States and all other stakeholders involved are also called upon to address language barriers in education through, inter alia, the streamlining of migrants’ needs in general language policies in the educational field.

In order to ensure full provision of the right to education of migrants and to safeguard harmonious social cohesion, education policies should be made adaptable and inclusive for migrants. Anchored in the value of interculturalism and the appraisal of cultural diversity, educational policies should be developed based on a comprehensive human rights framework and be inclusive of migrants’ needs, while seeking to eliminate any forms of discrimination faced by migrants.

The extent that education is made adaptable to migrants’ needs and rights is crucial to ensuring the comprehensive protection of migrants’ right to education. If curricula are not inclusive, and diversity is not valued in and outside the classroom, discrimination, xenophobia and racism are accepted in the educational system and in migrants’ place of residency. Thus, adaptability is a crucial principle that needs to be guaranteed at all times in migrants’ educational journey in order to ensure full enjoyment of migrants’ right to education.

To strengthen empathy, solidarity, the protection of migrants’ rights, and social cohesion, national mainstream curricula should embrace education on human rights and child rights, and should include recognition and reciprocal learning with regard to cultural references and to contributions made to the development and the life of societies as a whole.

In order to comprehensively integrate migrants into society, educational curricula must also be open to accommodating migrants’ educational interests, cultural identity and aspirations.

The curricula of mainstream education should be free of migrant misrepresentation and assimilation attempts, and at the same time be expanded to foster understanding of migrants’ issues, acceptance, and protection, by giving migrants a seat “at the table” where curricular contents are negotiated.

To ensure the adaptable character of migrant education, mainstream curricula as well as policies related to languages in the educational system should be reviewed in order to streamline the protection of migrants’ rights as well as migrants’ societal integration. Migrants’ language needs must be carefully assessed and integrated into educational policies and programming (multilingual policies and programmes) to safeguard migrants’ smooth transition into the national educational system and successful integration.

Therefore, the diversification of the teaching staff, as well as the implementation of intercultural education policies promoting values of cultural diversity and inclusion, can contribute to ensuring a smooth transition into and adaptation of the educational system for migrants.

In order to ensure full provision of the right of migrants to education and to safeguard harmonious social cohesion, education policies should be made adaptable and inclusive for migrants. Anchored in the appraisal of cultural diversity, educational policies should be developed based on a comprehensive human rights framework and be inclusive of migrants’ needs, while seeking to eliminate any forms of discrimination faced by migrants.

The extent that education is made adaptable to migrants’ needs is crucial in ensuring comprehensive protection of migrants’ right to education. If curricula are not inclusive and diversity is not valued in and outside the classroom, discrimination, xenophobia and racism are accepted in the educational system and in migrants’ place of residency.

States should take measures to improve their data systems in order to effectively collect, categorize and update information, disaggregated by sex, age and country of origin, on the situation of migrants, in particular with regard to education.

Data collected at the national and regional levels should be used to inform targeted programmes, activities and policies related to the right of migrants to education. Similarly, information should be provided to regional and international data collection institutions in order to allow more relevant targeting of education-related programmes and financial support at the regional and international levels.