The fundamental human right to education for refugees: Some legal remarks

Abstract

The aim of this article is to describe the human rights obligations a State bears in educational matters with concerns to the current influx of refugees. The right to education is a fundamental human right guaranteed by many international treaties. As a result, the impression may arise that everyone, not only legal citizens but also all those lacking legal documents, can easily refer to any of these texts in order to enforce access to education and every right attached to education. The legal truth is however more complex. This article will first examine the various international legal texts: do refugees fall within the scope of application? Second, we will take a closer legal look at some issues often raised in practice when dealing with the influx of refugees: (i) can higher school fees be asked from pupils without legal documents? (ii) do refugees have a right to be taught in their own native language until they learn to speak the national language? and (iii) can they be placed in special (separate) schools or classes until they can follow the regular curriculum?

Introduction and methodology

The aim of this article is to describe the human rights obligations a State bears in educational matters under the current influx of refugees. The right to education is a fundamental human right guaranteed by many international and regional treaties. As a result, the impression may arise that everyone, not only legal citizens but also all those lacking legal documents, can easily refer to any of these texts in order to enforce access to education and every right attached to education (free admission, grants, access to special language courses, etc.). The legal truth is however more complex. In the words of the special report of the United Nations (UN) on the right to education of migrants, refugees and asylum seekers: “human rights law does not sufficiently address the question of binding obligations of States to take positive measures” and “it is largely unclear which distinctions between migrants and the citizens are admissible and which are not” (Hemelsoet, 2012: 165; UN Human Rights Council, 2010). Overall, the material effects of international human rights legislation on improving (irregular) migrants’ access to social rights in the European countries have remained limited: due to the lack of guarantees on effective incorporation in the municipal legal order and due to the lack of effective enforcement mechanisms, often they are not much more than a statement of normative intent (Laubenthal, 2011: 1359).

After some introductory words on the basic principles and structure of international law treaties, this article will first examine the various international legal texts: do refugees fall within the scope of application and can they invoke the direct effect of those provisions? Secondly, we will take a closer look at some issues often raised in practice when dealing with the influx of refugees: (i) can higher school fees be asked from pupils without legal documents?; (ii) do refugees have a right to be taught in their own native language until they learn to speak the national language?; and (iii) can they be placed in special (separate) schools or classes until they can follow the regular curriculum?

To answer the above questions, the doctrinal and comparative legal method will be used (for more information, see Van Hoecke, 2013), that is, the classic legal hermeneutic method, taking into account both formal sources of law (a.o. statute law and case law) and material sources of law (underlying practices and historic developments) and respecting the hierarchy between the examined legal norms while making a teleological interpretation of those norms (i.e. interpreting legislative provisions in the light of their legal, social and economic context and goals). The normative framework will be distilled from the recent and relevant international treaties and European law instruments and their underlying policy documents, the relevant national legislative rules and preparatory acts, the literature, the (published) jurisprudence and human rights reports. Regarding this article’s research questions, relevant cases from international courts are very limited in number. Human rights treaties are not commonly tried in domestic or international courts. The human rights monitoring system primarily consists of the obligation to deliver periodic state reports (completed with parallel reports from non-governmental organizations (NGOs) and other interested actors) and the monitoring work by special rapporteurs, investigators and other specific monitoring bodies installed by their respective treaties. Insofar the documents drafted in the course of this ‘softer’ enforcement system are relevant for the research questions raised in this article, they have been included in the data. More ‘legal’ enforcement is installed by some treaties that allow inter-State complaints, or allow individuals to lodge individual complaints. Inter-State complaints are rare in the field of education as cross-border interests are rather low, especially for primary and secondary education. Individual complaints are usually first treated in domestic courts and dealt with pursuant to domestic law (lodged by individuals or NGOs depending on the national rules on standing to sue), insofar human rights provisions have been internalized into the legislation of municipal legal orders. Only insofar the individual complaint finally reaches the international court, the assessment of the case pursuant to human rights norms is guaranteed. Insofar such case law concerning access to education for refugees exists, the authors have tried to be exhaustive in their selection. The article is mainly descriptive in nature. Its aim is not to analyze new data, but to serve as a summary of the legal provisions, case law and legal literature on the topic of the right to education for refugees.

Basic legal principles of international law treaties

Whereas international human rights declarations are in general not legally binding and are primarily aimed at having political impact, international treaties are signed by the contracting States to have legally binding effect. Nevertheless, the justiciability of those provisions is all but certain. To understand the delicate question of the enforcement of the right to education through the judicial system, it is important to understand the nature of the human rights involved and to have some basic understanding of international treaties in general.

A first factor to be taken into account, is the nature of the human right to education. Unlike the rights to freedom of speech, freedom of religion, etc. (usually called ‘liberties’ or ‘civil and political rights’ or more in general ‘the first generation of human rights’), the right to education can be categorized as a ‘social, economic and cultural right’, which requires positive action and funding from the States (compare Beiter, 2006: 47; Pas and Vandaele, 2000: 346 and following). Social, economic and cultural rights are also described as second generation human rights. Whereas first generation human rights are strongly individualistic and negatively constructed to protect the individual from State interference, second generation human rights are rights that are generally not directly owned by individual citizens, but merely constitute positive duties upon the government to (gradually) respect and fulfill them subject to availability of public resources. While both categories of human rights are theoretically indivisible and interdependent, the application of the second-generation rights has always been enforced and monitored less strictly, as gradual implementation is tolerated.

Two additional reasons specifically threaten the justiciability of refugees’ right to education. First, States tend to defend the principle that their obligation to respect, protect and fulfill (and certainly finance) these social, economic and cultural rights is limited to those individuals with whom the State maintains a clear legal relationship (Vandenhole et al., 2011: 617). Refugees are one of the most prominent groups that risk being excluded from full legal protection by States aiming to limit their obligations. Secondly, given the fact that gradual positive action is necessary from the States, treaties are usually less specific about the exact obligations resulting from social, economic or cultural rights, leaving it to a large extent to the discretion of the States to decide how to reach the envisaged result and whether or not distinctions can be made between individuals (Vandenhole et al., 2011: 620). Moreover, insofar treaty provisions aim at specific groups (and certainly minority groups), definitions vary between treaties or are lacking entirely, impeding effective applicability and enforceability of those provisions (De Groof, 1996: 39–45; Henrard, 1996: 46–66). In legal terms, lack of precision in the drafting of international treaties can lead to the lack of ‘direct effect’ or ‘self-executing force’. These terms can be understood as the legal mechanism which enables a domestic body (especially a court) to apply an international rule directly; this application can eventually render a rule of domestic law which is not in conformity with international law illegal (Council of Europe Venice Commission, 2014). Provisions usually lack direct effect if the obligations in those provisions are insufficiently precise, clear or unconditional, or call for additional measures (Pas and Vandaele, 2000: 333). For example, where a treaty vaguely states that a State shall take all appropriate measures to ensure the gradual implementation of a social, economic or cultural right, a domestic court might refuse to apply the international human rights norm directly, instead only taking domestic legal norms into account when assessing the situation at hand. But even if direct effect is lacking, there might still be a ‘standstill effect’ on the State’s municipal legal order. The standstill principle prohibits the State from taking measures that would imply a significant deterioration of the protection of the right the State provided before entering into the treaty (Pas and Vandaele, 2000: 336). For example, national legislation allowing a sudden rise of enrolment fees for higher education without any justification on the basis of public interest, might constitute a violation of the standstill principle and open up an opportunity to demand annulment of that legislation, as the International Covenant on Economic, Social and Cultural Rights (ICESR), pursuant to its article 13 (c), introduces the principle of progressive introduction of free higher education (compare Beiter, 2006: 80–81).

Finally, it must be noted that direct effect and standstill effect do not in themselves mean that those provisions have priority over national law. In principle, this issue of hierarchy of human rights norms is resolved by each member State separately. Many national legal orders contain an explicit reference to international human rights treaties, making it clear that international human rights treaties shall prevail over domestic law, but not always over national constitutions (Council of Europe Venice Commission, 2014: 10–12; Pas and Vandaele, 2000: 332–333).

In other words: if refugees notice that a State’s legislation or practice is contrary to human rights law, they need not only ascertain that the relevant human rights provision is part of the municipal legal order and has direct effect, but also that this human rights provision had priority over domestic legislation and/or the national constitution. The answer to these questions will differ from State to State within Europe.

Do refugees have a legally guaranteed right to education, and to which extent is this right enforceable against the State?

European Convention on Human Rights (1950)

The European Convention on Human Rights deals with the right to education in article 2 of the First Protocol: “no person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” The aim when drafting the Convention was that the substantive provisions of the Convention would have direct effect in the contracting States, after they have become part of the domestic legal order, and the same applies to the right of education pursuant to article 2 of the First Protocol (Fawcett, 1987: 411–416).

When assessing the rights of refugees under article 2 of the First Protocol (on this topic, extensively, De Groof and Lauwers, 2004), it should be noted that the right to education is not absolute and may be subject to limitations (Belgian Linguistics Case, nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64: §65), as education by its very nature calls for State regulation (Lauwers, 2005: 4; Veny, 2015: §18). In order to ensure that the restrictions do not curtail the right to education to such an extent as to impair its very essence and deprive it of its effectiveness, the restrictions must be foreseeable for those concerned and pursue a legitimate aim. A limitation must assume a reasonable relationship of proportionality between the means employed and the aim sought (Ali vs the United Kingdom, no. 40385/06: §53; Catan and others vs Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06: §140; Leyla Şahin vs Turkey, no. 44774/98: §154; Tarantino and others vs Italy: §45).

Limitations on the scope of the provision seem however not defendable. Nationals as well as foreigners, Stateless persons as well as illegally residing persons, are bearers of this fundamental right (compare Belgian Linguistic Case, nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64: §3 and report of 24 June 1965: §388; Catan and others vs Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06: §18). The parliamentary assembly of the Council of Europe made it clear that all children have a right to education, extending to primary school and secondary school levels, in those countries where such schooling is compulsory (Parliamentary Assembly, 2006: §13). In a democratic society, the right to education, which is indispensable to the furtherance of human rights, plays such a fundamental role that a restrictive interpretation of the first sentence of the aforementioned provision would not be consistent with the aim or purpose of that provision (Leyla Şahin vs Turkey: §137; Timishev vs Russia, nos. 55762/00 and 55974/00: §64; Veny, 2015: §35).

European Social Charter (1961)

Article 17 of the European Social Charter states that the States shall take “all appropriate and necessary measures designed to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose.” At first sight, this article seems not to be applicable to refugees, as the European Social Charter describes its own scope of application as limited to nationals or other parties “lawfully resident or working regularly” within the territory of the country concerned. However, the European Committee of Social Rights (ECSR) has pointed out that the restriction of the personal scope should not be read in such a way as to deprive foreigners coming within the category of unlawfully present migrants of the protection of the most basic rights enshrined in the Charter or to impair their fundamental rights such as the right to life or to physical integrity or the right to human dignity (ECSR International Federation of Human Rights Leagues v. France, Complaint No. 14/2003: §§ 30 and 31; ECSR Defence for Children International v. the Netherlands, Complaint No. 47/2008: § 19). Persons not lawfully present in a country are thus not covered by all the provisions of the Charter, but solely by those provisions whose fundamental purpose is closely linked to the requirement to secure the most fundamental human rights and to safeguard the persons concerned by the provision in question from serious threats to the enjoyment of those rights (ECSR Defence for Children International (DCI) v. Belgium, Complaint no. 69/2011). Given the unqualified submission that “children, whatever their residence status, come within the personal scope of Article 17 of the Revised Charter” (ECSR Defence for Children International v the Netherlands, Complaint No. 47/2008: §66), it is most likely that the Committee would consider the right to primary and secondary education to be applicable to undocumented children (Vandenhoole et al., 2011: 619).

International Covenant on Economic, Social and Cultural Rights (1966)

The ICESCR encompasses the most far-reaching obligations for member states. Pursuant to article 13 ICESCR, states recognize the right of everyone to education: Education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds (ICESCR General Comment no. 13, 1999: 3). “All” in the meaning of the Covenant means “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” (ICESCR General Comment no. 20, 2009: §30).

Despite those far-reaching obligations, only one small part of those provisions is sufficiently clear to have direct effect: article 13, 2, a of the Convention clearly and unequivocally entails the obligation for states to make sure that primary education is compulsory and available free to all (ICESCR General Comment no. 13, 1999: 23). For secondary, vocational and higher education as enumerated in article 13, 2 ICESCR, States should move as expeditiously and effectively as possible towards the full realization. If any deliberately retrogressive measures are taken, the State has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the State party’s maximum available resources (ICESCR General Comment no. 13, 1999). It must be noted however that article 2 CESCR contains a prohibition of discrimination, and this provision is deemed to have direct effect: the prohibition of discrimination is subject to neither progressive realization nor the availability of resources (Vandenhole et al., 2011: 620). Moreover, the prohibition of non-discrimination extends to refugees: “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” (ICESCR General Comment no. 13, 1999: §§ 31 and 34).

Convention on the Rights of the Child (1989)

Article 28 of the Convention on the Rights of the Child (CRC) imposes an obligation on its member States to provide education progressively and on the basis of equal opportunity. Article 2 CRC states that States parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction. The interpretation of article 2 CRC is left to the member States. The UN Children’s Rights Committee has made it clear that article 2 CRC should be interpreted in a broad way: State obligations under the Convention apply within the borders of a State, including with respect to those children who come under the State’s jurisdiction while attempting to enter the country’s territory. Therefore, the enjoyment of rights stipulated in the Convention are not limited to children who are citizens of a State and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children – including asylum-seeking, refugee and migrant children – irrespective of their nationality, immigration status or statelessness (CRC General Comment no. 6, 2005: 6 and 13–14; Vandenhoole et al, 2011: 619). There are however State parties that have accompanied their ratification with reservation or interpretative declarations intended to limit the scope of their obligations, for example with a reservation regarding minors who do not have a right of legal residence in the country (Laubenthal, 2011: 1359).

Several other documents with a limited right to education undertaken by the contracting States

Several other texts contain relevant provisions as well, most notably the articles 4 and 22 of the Convention relating to the Status of the Refugee and its 1967 Protocols and the Convention against Discrimination in Education concluded in 1960. However, these articles contain only a limited right of access to education, surpassed by other treaties (Beiter, 2006: 123–124). These treaties will not be discussed further, nor will other international agreements that protect the equal rights of specific groups and also recognize the right to education (for an overview, see Beiter, 2006: 123; Heymann et al., 2014 and following; De Groof and Lauwers, 2005: 17–21).

Conclusion to the first research question

On the basis of the foregoing analysis, it becomes clear that human rights treaties give ample opportunity to claim that refugee children have a right of access to education. States must use all appropriate means including, in particular, the adoption of legislative measures in order to satisfy their obligations under said treaties, that is, to respect, protect and fulfill the right to education. Effective enforcement mechanisms must be available to guarantee this right to education: “for rights to have meaning, effective remedies must be available to redress violations” (CRC General comment no. 5, 2003: §24). In light of the foregoing, practical difficulties in the organization of this right should not find legal justification too easily in the principle of gradual implementation of social and economic rights according to available resources. For the countries that signed the First Protocol of the European Convention of Human Rights, the clear formulation of article 2 (“no one shall be denied access to education”) and the resulting competence of the European Court of Human Rights (ECtHR) to award damages to victims of established human rights violations, provides for a powerful legal weapon.

Legal questions concerning the concrete organization of the right to education

Can higher school fees be asked from refugees?

In December 2016, Marine Le Pen stirred public debate by exclaiming that no free education should be provided for children of ‘illegal immigrants’. “If you come to our country [as an ‘illegal immigrant’], don’t expect that you will be taken care of, (…) and that your children will be educated for free” Le Pen said (The Guardian, 8 December 2016). From a legal point of view, this raises the question if higher school fees can indeed be demanded from learners of ‘illegal migrants’, as Le Pen said, or more in general from learners whose parents do not contribute to the fiscal system, as Le Pen later clarified (The Guardian, 8 December 2016).

On the basis of the above provisions of international human rights law, the duty of States to provide free education varies according to the level of the education (Van Bueren, 1995: 234). Access to primary education is free for all, as stated clearly by article 13, 2, a° ICESCR in sufficiently clear terms to have direct effect (see above). Article 28 CRC goes even one step further, and declares primary education as a whole (as opposed to access to education) available free to all.

For secondary education, the question arises whether or not a distinction in school fees can be made between legal residents and people without documents, without violating the non-discrimination principle. This question was raised in the Ponomaryov case; in which the ECtHR observed that “a State may have legitimate reasons for curtailing the use of resource-hungry-public services […], by short-term and illegal immigrants, who, as a rule, do not contribute to their funding” (Ponomaryov and Ponomaryov vs Bulgaria, no. 5335/05: §54). A State must indeed strike a balance between the educational needs of those under its jurisdiction and its limited capacity to accommodate them. However, scrutiny by the courts might be stricter for distinctions made with regards to education, than for distinctions made for other public services, as education is a right expressly enshrined in Article 2 of the First Protocol and enjoys direct protection. It is also a very particular type of public service, which not only directly benefits those enjoying it but also serves broader societal functions (Veny, 2015: §35). In a democratic society, the right to education is indispensable to the furtherance of human rights (Leyla Şahin). Moreover, to the claim that society has an interest to integrate minorities, the ECtHR stressed that pluralism is indeed necessary for democracy (Konrad and Others, no. 35504/03). The Court was mindful in the Ponomaryov case of the fact that with more and more countries now moving towards what has been described as a “knowledge-based” society, secondary education plays an ever- increasing role in successful personal development and in the social and professional integration of the individuals concerned. Those considerations militate in favour of the ECtHR applying stricter scrutiny to the assessment of the proportionality of the measures undertaken to raise fees for secondary pupils without documents (Veny, 2015: §35).

An example of a distinction in the financial treatment of residents and people without documents that was upheld as lawful by a domestic Constitutional court, can be found in Belgium (Flanders), where the Flemish government chose to add nationality or a legal stay on the territory as conditions for enrolment in adult education (article IV.1, 3° en IV.7, 1° Decree Flemish Parliament of 1 July 2011 betreffende het onderwijs XXI, Belgian Gazette 30 August 2011). This type of education is primarily aimed at adults who did not finish secondary education (De Groof and Lauwers, 2005: 51), and the parliamentary preparatory documents contained a paragraph claiming that, unlike education for minors, no international treaties oblige a state to guarantee an absolute right to education for adults (Flemish parliamentary records, 2010–11, no. 1.1082/35). The Flemish government claimed that providing education for adults who were obliged to leave the country would send a wrong signal, and would hinder the migration policy of the federal Belgian government. The Constitutional Court upheld the provision (Belgian Constitutional Court, no. 37/2013). In the words of the Court: it is not unreasonable that the legislator, when dealing with specific efforts and means to boost personal development, one’s functioning in society, the ability to further participate in education, to exercise a profession or to master a language, decides to limit the scope of application to persons who, due to their administrative status, are presumed to remain in Belgium permanently or at least for a significant amount of time. Moreover, the Court referred to the human rights treaties mentioned above, in particular article 2 of the First protocol of the European Convention on Human Rights (ECHR) and article 13 ICESCR but found that those provisions do not have a standstill effect for adult education (GwH no. 37/2013; for critical comments on this decision, see Habets, 2013).

Do refugees have a right to speak or be taught in their own native language in school?

No one will deny that learning the language of the country you reside in is a key element of successful integration in that country. But what is the language of the country you reside in? For children belonging to minority groups, that question becomes more complex.

The importance of minority language instruction is widely recognized by legislators, both at the national level and at international level (De Groof and Lauwers, 2005: 21–30; UN Human Rights Council, 2011: 16) and many international initiatives have recognized linguistic rights (Andrássy, 2012; De Varennes, 2001). However, this does not translate into a right for refugees to demand instruction in whichever native language they speak. The ECHR for example does not contain an obligation for the government to establish or to subsidize specific educational facilities at the simple request of users; such as the creation of minority-speaking classes (Skender vs the Former Yugoslav Republic of Macedonia, no. 62059/00; Veny, 2015: §43). In the words of the ECtHR: “that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level” (Belgian Linguistic Case, nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64: §3).The right to education in a particular language can thus not be derived from article 2 of the First Protocol (Ali vs the United Kingdom: §54; Simpson v the United Kingdom, no. 14688/89). This provision does not require contracting states to establish or subsidize schools in which education is provided in a certain language (Lauwers, 2005: 13); nor does it require of States that they should, in the sphere of education or teaching, respect, for example, the parents’ linguistic preferences, but only their religious and philosophical convictions (Veny, 2015: §36).

Education must only be guaranteed in minority languages, if those minority languages are national languages within a certain state (Veny, 2015: §39 and further). The ECtHR has dealt with several cases concerning this topic, for example in a case dealing with the situation in secondary schools for Greek pupils living in Northern Cyprus (Cyprus vs Turkey, no. 25781/94). In this case, the ECtHR held that the very core of article 2 of the First Protocol was endangered due to the fact that no appropriate secondary-school facilities were available for Greek-speaking pupils. A similar case is found in Catan and others vs Moldova and Russia: the forced closure of Latin-script schools constituted a violation of their right to be educated in their national language (Catan and others vs Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06 ). In the Skender case (Skender vs the Former Yugoslav Republic of Macedonia) a Turkish-speaking family in the Former Yugoslav Republic of Macedonia (FYROM) wanted their daughter to enrol in a Turkish-speaking primary school. As Turkish is not a national language in FYROM, the ECtHR reiterated the settled case law that article 2 of the First Protocol does not guarantee education in a specific language in accordance with the parents’ preferences (Veny, 2015: §46).

The ECHR is not the only international treaty making a distinction between national minorities on the one hand, and recent minorities resulting from migration on the other hand. A similar limitation of human rights protection can also be found in article 27 of the International Covenant on Civil and Political Rights (ICCPR), which contains the protection of minorities’ rights to enjoy their own culture, to profess and practice their own religion, or to use their own language (see Berry, 2012). Even though article 27 applies to “all ethnic, linguistic or religious minorities”, the ICCPR Committee does not apply the same interpretation of article 27 for the integration of migrants into the territory, and does not refer for example to an obligation to provide an opportunity for migrant children to receive instruction in their language of origin, which it does in the case of national minorities (Bossuyt, 2005; Murphy, 2013).The distinction between traditionally used and non-traditionally used languages manifests itself in international law, too. The best example is likely to be the European Charter for Regional or Minority Languages, which expressly recognizes the value of traditionally used languages and provides protection for them (Andrássy, 2012: 227–228) and excludes the language of migrants (May, 2011: 274; Shuibhne, 2002: 49–50). The UN Declaration on the Rights of Indigenous Peoples and the Framework Convention for the Protection of National Minorities also supports this distinction (Andrássy, 2012: 227–228). As for the Framework Convention for the Protection of National Minorities, the specific provisions for language and education remain sufficiently qualified for most states to avoid them if they so choose (Henrard, 1996: 64; May, 2011: 274–275). Moreover, nor the Charter, nor the Framework are self-executing (Rooker, 2001: 51). Indeed, although some groups of individuals, such as refugees, may find themselves in similar situations as national minorities, they are not primarily the target group of minority rights (Thompson, 2001: 131).

It must be noted however that the UN Human Rights Committee interprets article 27 ICCPR broader: “they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled” (Beiter, 2006: 144; Human Rights Committee General Comment no. 23, 1994: §5.2). Although this seems to be an interesting opening for refugees, it is important to realize that the only language right granted in article 27 ICCPR is the right to use the own language, not the right to be taught in this language (Detrick, 1999: 535–536).

Nonetheless, in the light of an effective realization of the right to education, it is a legitimate question to ask if special facilities need to be organized in the existing educational institutions for refugees who do not speak the language of instruction. After all, for those students, the right to education remains indefinitely illusive without such provision (Veny, 2015, §39). According to General comment no. 6 of the UN, all unaccompanied and separated children have the right to maintain their cultural identity and values, including the maintenance and development of their native language (General Comment no. 6, 13–14). The UN report of 2010 on the right to education of migrants, refugees and asylum-seekers adds that in accordance with article 28.1 CRC “equal opportunity” may justify differential treatment of migrant, refugee and asylum-seekers’ children, such as mother-tongue teaching, provided that non-discrimination measures are in place (UN Human Rights Council, 2010: 25). And as explained above, the UN Human Rights Committee gave an interpretation to article 27 ICCPR (after which article 30 CRC was modelled) that was sufficiently broad to include recent minorities resulting from migration (Beiter, 2006: 144–146). However, even though a historic overview of the rights of persons belonging to linguistic minorities indicates ever increasing levels of protection (Andrássy, 2012: 225; De Varennes, 2001: 4–8, Shuibhne, 2002: 190 and further; Glenn, 1996: 75–78), at the preliminary stage it looks unlikely that the right to education in a “recent” minority language will soon become a basic, universal and fundamental right (May, 2011: 275, 266–269; Veny, 2015: §40).

Can refugees be placed in separate classes?

Debates in the media since the recent influx of refugees have focused on the question whether or not refugee children should be (temporarily) segregated from other students, in order for them to learn the national language more easily, or to respond to issues of capacity (“Learning the hard way: Integrating migrants into schools will not be easy”, The Economist, 2 January 2016). However, debate rages whether or not this segregation constitutes a human rights violation?

Although the choice to create (mostly temporary) separate classes for minority groups is sometimes made for a justified pedagogic reason to make practical sense of the right to education (Hemelsoet, 2012) the dangers of segregated minority schooling are also highlighted by other scholars (Glenn, 1996: 79–84). From a legal point of view attention needs to be paid to the question if such a separate treatment violates the principle of (direct or indirect) non-discrimination (Lauwers, 2005: 127 and further). In particular, the ECtHR has been active in the past years in several cases concerning Roma children and other minority groups (Stalford, 2012:161 and further). The ECtHR has made it clear in the past that organizing separate schools or classes and amending the curriculum for certain minorities is not necessarily a breach of the principle of non-discrimination, depending on the legitimate goals the government wishes to achieve and the necessity, appropriateness and proportionality of the measures taken (in the same sense, see UN Human Rights Council, 2011: 8 and further). Temporary placement of children in a separate class on the grounds that they lack an adequate command of the language is not automatically contrary to non-discrimination: It might be said that in certain circumstances, such placement would pursue the legitimate aim of adapting the education system to the specific needs of the children (Veny, 2015, §60). In many cases concerning the structural segregation of Roma minorities however, the Court eventually concluded that no adequate safeguards were in place capable to ensure that a reasonable relationship of proportionality between the means used and the legitimate aim that was said to be pursued was achieved and maintained (for example: D.H. and others vs Czech Republic, no. 57325/00; Lavida and others vs Greece, no. 7973/10; Sampani and others vs Greece).

If this case law is extrapolated to the situation of refugees, it is clear that special preparatory classes or schools can be organized, but member States must be careful that the conditions surrounding school enrolment, educational facilities and expected learning outcomes are appropriate, necessary and proportionate, meaning that they can reasonably be believed to effectively reach that legitimate goal of integration in the regular curriculum and school system, instead of ultimately resulting in discrimination. When measures disproportionately or exclusively affect members of one specific ethnic group, then appropriate safeguards have to be put in place (Oršuš and others vs Croatia no. 15766/03).

Discussion and conclusion

In this article, next to legal provisions, underlying documents and reports, the case law from international courts was examined to answer fundamental legal questions raised in current debates on the right to education for refugees. When interpreting the answers given to those questions, some caution is needed.

First, the information above shows that human right treaties and international conventions are negotiated globally, but that individual States retain a large margin of appreciation in the implementation and interpretation of those provisions. Even for the interpretation of the ECHR, with a single Human Rights Court watching over its implementation, national interpretations exist. Even though the Convention does not contain an explicit provision that the national identity of member states is to be taken into account when applying the text of the convention to one of the members states (as is the case in article 4(2) of the Treaty of the European Union for the application of European Union law), it is clear from the case law of the ECtHR that a uniform application is not necessarily pursued, and that differences in national identities of states can lead to different interpretations (López Guerra, 2013: 305–321). In practice, the Convention has not precluded the ECtHR’s recognition of the existence of national peculiarities, nor has it prevented the ECtHR from deriving relevant consequences in that regard in the area of human rights (López Guerra, 2013: 306–307). This implies that national authorities (legislative, executive and judicial powers) enjoy a margin of appreciation to determine the extent of the afflicted human right and admissibility of restriction of that right (López Guerra, 2013: 308–309). The ECtHR reviews those appreciations in last instance, and takes into account peculiarities of a specific case, as well as ‘systemic features’ including factual elements (economic, cultural or historical aspects of the country) and elements of a legal nature (features of the constitutional system). Examples of such systemic features can easily be found in the case law concerning the right to education. In Lautsi v. Italy, 2011, No. 30814/06, the ECtHR found that the decision whether crucifixes should be present in State school classrooms is, in principle, a matter falling within the margin of appreciation of the State, and went on to decide that the defended historical and cultural tradition of showing a passive religious symbol such as the crucifix in classrooms did not constitute a violation. In the Folgero case, the ECtHR examined the content of “Christianity, religion and philosophy” lessons and found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (Folgero v. Norway: § 89; for the same reasoning for predominantly Islamic “religious culture and ethics” classes in Turkish schools, see Zengin v. Turkey: § 63). In addition, the ECtHR found that the existence of a constitutional divide between State and Church could be accepted as a relevant factor in determining the legality of a prohibition of the Islamic Veil (Dogru v. France and Leyla Sahin v. Turkey). The foregoing indicates that the use of international case law to support a violation of human rights in the municipal legal order must be done with the necessary caution. If advocacy wants to be rooted in firm legal reasoning, due attention to systemic features of a nation must be taken into account.

A second round of caution goes to the historical context in which the above treaties and conventions were drafted, and the different setting they are interpreted in, in present-day society. Every State’s motivation to pursue protection for second generation rights, had different historical origins: each sprung from distinct national contexts, with a unique interaction of religious, philosophical, ideological or political drives and different legal traditions. Consequently, as the national context was always kept in mind, States’ ambitions and political concerns during the drafting process differed strongly. When these diffuse mixtures of motives met during negotiation, the only possible compromise to parties’ State-centeredness was found through formulating non-committal provisions that were open to interpretation (Henrard, 1996: 47; Steiner, 2008: 269). Because of the leadership of powerful states in the negotiations, some have argued that the current set of human rights are drafted by the privileged (and Christian–Western oriented) few for the world at large (Smith, 2012: 175). According to them, it was these States’ aversion of State-interference as a threat to liberalism and the free market, that undermined the vigour of second generation rights. Additionally, the same State-centeredness obstructed universally accepted definitions for certain crucial terms (minorities, people, etc.), partially due to the diversity of situations in which such groups were involved, partially by States’ reluctance to accept minority rights (Steiner, 2008: 269). Particularly Western and Latin American States had in mind that minorities should be assimilated and feared that the exercise of minority rights could lead to growing self-confidence on the part of the minorities, resulting eventually in exaggerated claims for autonomy (Beiter, 2006: 143–144). More than fifty years after the fundamental treaties were signed, similar concerns are still present, adding to uncertainty over the implementation of the legal rules. Historical concerns over the granting of social or cultural rights to specific minority groups have all but subdued. Globalization and large-scale immigration have made the world more complex, and the diffuse mixtures of ideas are now meeting (or clashing) within State borders. Whereas the discussion on minority rights was previously limited to historic minorities within a certain nation, now the debate has expanded to include new minorities resulting from migration. Yet, multicultural societies are a fact that must be dealt with by the States. Different racial, religious, linguistic, and ethnic groups must live together as co-nationals (Smith, 2012: 175). In the current society however, it seems unlikely that a uniform interpretation of sensitive human (minority) rights is to be expected in the near future.

With the previous two warnings in mind, the following conclusions can be drawn from this article. The right to (access to) education is applicable to refugee children. However, due to the careful phrasing of international treaties of how this right is to be achieved, the question of how those rights can effectively be invoked against States remains delicate. How such right to education for refugees can practically be organized without violating the principle of non-discrimination has been described in this article by summarizing the case law and literature on three important questions: (i) a distinction in school fees for non-European-refugees will be examined with the most careful scrutiny and only for higher education seems such distinction defendable; (ii) refugees currently do not have a fundamental right to education in their own language of origin, unless this language is also a (minority) national language of the country they are entering; and (iii) placing refugees in separate schools or classes is not automatically unlawful, however sufficient safeguards must be in place to make sure that such separation is a means to achieve full enjoyment of their right to education, and not a de facto excuse for discrimination.