Equity not equality: the undocumented migrant child’s opportunity to access education in South Africa

ABSTRACT

Access to education for undocumented migrant children in South Africa remains a significant challenge. While the difficulties related to their inability to access education within the country have been highlighted elsewhere, there remains a lack of clarity on an approach to how this basic human right can be achieved. In this conceptual paper, we draw on the distinction between equality and equity, and describe the various ways in which education has been conceptualised in the South African Constitution – which in part contributes to the existing confusion on education for various groups, including undocumented migrant children. In this paper, we critically reflect on the need to develop an integrated approach for creating a platform that allows all undocumented migrant children access to education in South Africa. We argue that an integrated approach – which entails ways through which access to education can be delivered through the lens of equity – will enhance the right to education for undocumented migrant children in South Africa. We conclude that the South African government must urgently consider this integrated approach to enable access to education for undocumented migrant children, so that they can achieve their full educational potential.

KEYWORDS:

• Equity
• equality
• education
• South Africa
• undocumented migrant children
• capability approach (CA)

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 The Act was intended to regulate immigration and related issues of the State.

See https://www.gov.za/documents/aliens-control-amendment-act

2 See for instance: Johnson (2020) and Isilow (2021).

3 In Table 1, the Immigration Act of 2002 clearly indicates that learning institutions are not permitted to allow undocumented or “illegal” foreign nationals to participate in learning or be found on the premises of such institutions. However, a recent court ruling concluded that reference to learning institutions in the Immigration Act was not inclusive of basic education institutions or schools:

These terms [learning institutions] ought to be interpreted to refer not to the rights of the children who receive basic education, but adults attending “learning institutions” to obtain something over and above “basic education” and are thereby trained or instructed in furtherance of their pursuits. (Phakamisa Judgment, 2019, p. 38)

While this interpretation has implications for equitable access to education, unfortunately, the Judgment has not made any significant difference in practically ensuring access to education for undocumented migrant children. By extension, this top-down approach, although important, is not sufficient to effect change.

Additional information

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.