File photo: Madeleine Cronje
Experts say the neglect of the needs of undocumented children in South Africa's education system is due to immigration issues as well as disparities between urban and rural areas in birth registration.
In October 2023, then Home Affairs Minister Aaron Motsoaledi, answering a question in Parliament, said 258,000 children under the age of 15 were caught up in delayed birth registrations.
The Centre for Children's Law (CCL) said the delays were due to a lack of localised services and not just due to an influx of migrants.
South Africa, a preferred destination for migrants, refugees and asylum seekers from Africa, is plagued by huge processing delays at the Department of Home Affairs, which exacerbates the challenges these children face.
“An undocumented child is not necessarily an illegal immigrant,” said Moyahabo Toca, an attorney and researcher at CCL.
The right to education for illegal immigrants is a groundbreaking Pakamisa The 2020 ruling confirmed that undocumented learners cannot be denied entry to school. The ruling challenged a 2016 circular from the Eastern Cape Education Department that had restricted funding of educational resources to children without identity documents.
The circular said teacher allocations and funding for school nutrition programs would be based on the number of students who have either a valid identity card, passport number or asylum permit number.
This has led some schools to expel or refuse to admit illegal immigrants.
In his ruling, presiding Justice Selby Mfanelo Mbenenge found two provisions of the School Admissions Code to be unconstitutional and invalid: Article 15, which requires parents to provide a birth certificate for a student to be admitted to school, and Article 21, which requires children classified as illegal aliens to provide evidence that they have applied to regularise their stay in the country.
Mbenenge ordered the Eastern Cape's minister of basic education and the school board to enrol all children who do not have a proper birth certificate in public schools in the province.
If a child cannot provide a birth certificate, schools are ordered to accept alternative proof of identity, such as a sworn statement or affidavit from the student's parent, guardian or guardian.
Many schools have since moved to an online application process, one of the requirements being that all students submit a birth certificate. For undocumented children, birth certificates, medical cards and affidavits can be uploaded into the system as alternatives.
Once the information is verified in the system, your child will be enrolled in school and, if conditionally accepted, the school district may request a birth certificate.
at this point Pakamisa If your application is physically submitted to the school, a decision will be made.
“Children are separate entities from their parents and are individual rights holders with the right to a basic education on an equal basis with all children,” Toca said.
Pakistani-born mother Mail & Guardian The woman, who asked not to be named, said she was initially worried that her two sons, who were born in the northwestern suburbs, would not be eligible for an education in the South African education system, but she said enrolling her children in the school system was a simple process.
“I was worried that my children would not be able to benefit from the South African school system because I was not born here, but the school was understanding and did not deny my children their right to an education,” she said.
Another undocumented parent from Mozambique said she was able to receive child support for her 10-year-old son because her husband is South African.
She added that she fears the government will stop giving her the grant because she is not a South African citizen.
Under the South African Citizenship Act 1995, if one of the parents is a South African citizen, the child derives citizenship by birth and therefore the child is eligible for financial assistance from the government.
However, if a child is an undocumented immigrant, under South African law, attending a South African school is neither a prerequisite nor a determinant of obtaining citizenship.
“When a child is dropped out of the basic education system, their adulthood faces serious problems if it is not documented,” Toka said.
of Pakamisa This ruling and the Department of Basic Education’s Circular No. 1 of 2020 only apply to basic education and will not accommodate illegal immigrants seeking to enrol in higher education.
In April the government gazetted the Citizenship, Immigration and Refugee Protection White Paper, which outlined plans to reform South Africa's immigration system, including strengthening border surveillance, establishing immigration courts, and withdrawing from international and regional human rights treaties.
The Equal Education Law Centre opposed, saying the white paper would have a negative impact on the rights of immigrant and undocumented children, particularly their right to an education.
But the CCL said the white paper was of little use as it was merely a collection of proposed legislation.
On Monday, President Cyril Ramaphosa announced the Democratic Alliance's Siviwe Gwalbe as the new minister of basic education and Leon Schreiber as minister of home affairs.
Following the appointment, the Equal Education Law Centre said in a statement that it “enters this new era with cautious optimism and hopes that Mr Gwalbe will prioritise the constitutional rights of all learners and work hard to ensure that all South African children have equal access to a quality education.”
