CHAPTER X

MIGRANT1 CHILDRENS RIGHT TO EDUCATION

Francesca De Vittor *

CONTENTS: 1. Scope and content of the right to education in international

human rights law. 2. International recognition of the right of immigrant
children, irrespective of their status, to receive education without dis-
crimination. 3. Protection of migrant childrens right to education under
the European Convention of Human Rights. 4. Migrant childrens right
to education under European Union law. 5. Protection of migrant chil-
drens right to education under the Italian legal system 6. Conclusion.

1. Scope and content of the right to education in international human

rights law

Ever since its proclamation in the Universal Declaration of Human Ri-

ghts2, the right to education has been a universally recognised human right3,

*
Assistant Professor of International Law, Universit Cattolica del Sacro Cuore,
Milan
1
In this chapter the concept of migrant children is used in extremely broad terms,
being taken to cover any child living outside his country of origin, but excluding Euro-
pean citizens or members of the family of a European citizen who have moved to another
European country.
2
General Assembly resolution 127(III), Universal Declaration of Human Rights, Ar-
ticle 26: 1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory. Techni-
cal and professional education shall be made generally available and higher education
shall be equally accessible to all on the basis of merit. 2. Education shall be directed to
the full development of the human personality and to the strengthening of respect for
human rights and fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further the activities of
the United Nations for the maintenance of peace. 3. Parents have a prior right to choose
the kind of education that shall be given to their children.
3
On the right to education as an international human right see, among others, DEL-
BRCK, The Right to Education as an International Human Right, in German Yearbook of
248 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

and it is enshrined in various international human rights treaties, both at

universal4 and at regional5 level.
The right to education has been classified as an economic right, a so-
cial right and a cultural right. More correctly, as clearly stated by the
Committee on Economic, Social and Cultural Rights (CESCR):
It is all of these. It is also, in many ways, a civil right and a political
right, since it is central to the full and effective realization of those rights
as well. In this respect, the right to education epitomizes the indivisibil-
ity and interdependence of all human rights6.
Thus, education is generally defined as an empowerment right, both

International Law, 1992, pp. 92-104; NOWAK, The Right to Education - Its Meaning, Sig-
nificance and Limitations, in Netherlands Quarterly of Human Rights, 1991, pp. 418-425;
ID, The Right to Education, in EIDE, KRAUS, ROSAS (eds.), Economic, Social and Cultural
Rights, second ed., Leiden, 2001; BEITER, The Protection of the Right to Education by In-
ternational Law, Leiden, 2005; SINGH, The Right to Education: International Legal Obli-
gations, in International Journal for Education Law and Policy, 2005, pp. 103-118; VER-
HEYDE, Article 28: The Right to Education, in ALEN, VANDE LANOTTE, VERHELLEN, ANG,
BERGHMANS, VERHEYDE, ABRAMSON (eds.), A commentary on the United Nations Con-
vention on the Rights of the Child, Leiden, 2006; SAPIENZA, Il diritto allistruzione nella
convenzione europea dei diritti delluomo, in Rivista giuridica della scuola, 1995, pp. 935-
941; SACCUCCI, Diritto allistruzione e discriminazione scolastica di minori stranieri alla
luce delle norme internazionali sui diritti umani, in PISILLO MAZZESCHI, PUSTORINO, VI-
VIANI (a cura di), Diritti umani degli immigrati. Tutela della famiglia e dei minori, Napoli,
2010. For a more sociological perspective see MCCOWAN, Education as a Human Right:
Principles for a Universal Entitlement to Learning, London, 2013.
4
See the UNESCO Convention against Discrimination in Education (CADE, 1960);
the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) in
Articles 13 and 14; the Convention on the Rights of the Child (CRC, 1989) in Articles 28
and 29; the International Convention on the Elimination of All Forms of Racial Discrimi-
nation (1965) in Articles 5(v) and 7; the Convention on the Elimination of Discrimination
against Women (1979) in Article 10; the Convention relating to the Status of Refugees
(1951) in Article 22; the Convention relating to the Status of Stateless Persons (1954) in
Article 22.
5
See the First Protocol (1963) to the European Convention for the Protection of
Human Rights and Fundamental Freedoms in Article 2; the European Social Charter (as
revised in 1996) in Article 17; the Charter of Fundamental Rights of the European Union
(2000, 2009) in Article 14; the African Charter on Human and Peoples Rights (1981) in
Article 17; the African Charter on the Rights and Welfare of the Child (1990) in Article 11;
the Charter of the Organization of the American States (1967) in Article 34; the Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights, Protocol Of San Salvador (1988) in Article 13.
6
CESCR, General Comment No. 11 (1999), Plans of action for primary education (Ar-
ticle 14 of the International Covenant on Economic, Social and Cultural Rights), UN Doc.
E/C.12/1999/4, 10 May 1999, para. 2.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 249

a human right in itself and an indispensable mean of realizing other

human rights, being the primary vehicle by which economically and
socially marginalized adults and children can lift themselves out of
poverty7. Indeed the right to education is the most paradigmatic exam-
ple of the integration of different State obligations in the human rights
field and of the overcoming of the dichotomy between civil and social
rights. Furthermore, this complex definition has certain implications
with regard to the definition of the nature of the States obligations in
connection with this right. In fact, the right to education should be im-
plemented progressively, in accordance with available resources, and yet
some aspects of this right, constituting its core content, must be imple-
mented immediately. In the words of the European Court of Human
Rights, the right to education by its very nature calls for regulation by
the State, regulation which may vary in time and place according to the
needs and resources of the community and of individuals, but such
regulation must never injure the substance of the right to education8.
Among the various economic, social and cultural rights, the content
of the right to education is relatively well defined (Article 13 is one of the
ICESCRs longest provisions), and consists of: universal access to free
and compulsory primary education9; universal availability/accessibility of
secondary education10; equal access to higher education on the basis of
capacity11. Furthermore, it is to be pointed out that human rights norms
recognise not only everybodys right to education, but also everybodys
right to quality education12.
In her Preliminary Report, former Special Rapporteur on the right to
education Katarina Tomasevski structured the complexity of Govern-
7
Committee on Economic Social and Cultural Rights, General comment No. 13
(1999), The right to education (Article 13 of the Covenant), UN Doc. E/C.12/1999/10, 8
December 1999, para. 1.
8
European Court of Human Rights, Case Relating to Certain Aspects of the Laws
on the Use of Languages in Education in Belgium v. Belgium (Merits), Applications nos.
1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, Judgment of 23 July 1968, para.
5.
9
See Article 13.2(a) ICESCR and Article 28(a) CRC.
10
See Article 13.2(b) ICESCR and Article 28(b) CRC.
11
See Article 13.2(c) ICESCR and Article 28 (c) CRC.
12
For an interesting analysis of this principle, focusing on problems concerning the
outcomes of education processes for children with a particular background see GYN-
THER, Beyond Systemic Discrimination. Educational Rights, Skills Acquisition and the Case
of Roma, Leiden, 2007.
250 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

mental obligations corresponding to the right to education [] into a 4-

A scheme, denoting the four essential features that primary schools
should exhibit, namely availability, accessibility, acceptability and adapt-
ability13. Educational facilities have to be available for all children, i.e.
sufficient in quantity within the jurisdiction of the State party, equally
distributed in the territory, and appropriately equipped in accordance
with the context in which they operate. Educational institutions and pro-
grammes have to be physically and economically accessible to everyone,
without discrimination. Curricula and teaching methods have to be ac-
ceptable to students and parents, i.e. relevant, culturally appropriate and
of good quality. Finally, to comply with the adaptability principle, educa-
tion has to be flexible so that it can adapt to the needs of changing soci-
eties and communities and respond to the needs of students within their
diverse social and cultural settings14.

2. International recognition of the right of immigrant children, irrespec-

tive of their status, to receive education without discrimination

In accordance with the concept that universal human rights, by def-

inition, belong to every human being, every child, regardless of any sta-
tus, should be entitled to adequate education15. The United Nations has
endeavoured to eradicate discrimination in education on different
grounds, but few of its very important works in this field have specifically
addressed the issue of the educational rights of migrants, refugees and
asylum seekers, even though the problem of the protection of the human
rights of migrants was recently assigned a prominent role in the agenda

13
Preliminary Report of the Special Rapporteur on the right to education, Katarina
Tomasevski, submitted in accordance with Commission on Human Rights resolution
1998/33, UN Doc. E/CN.4/1999/49, 13 January 1999, para. 50, and following para-
graphs for details. See also TOMASEVSKI, Human rights obligations in education: the 4-A
scheme, Nijmegen, 2006.
14
Committee on Economic Social and Cultural Rights, General comment No. 13
(1999), The right to education (Article 13 of the Covenant), cit., para. 6. It is to be men-
tioned that the Committee extends the 4A scheme, developed by Tomasevski for primary
schools, to all levels of education.
15
Education as a human right is a right of adults as well as children. Nevertheless,
international norms differ in scope and significance when relating to adult education.
This chapter addresses only the issue of the right to education of migrant children.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 251

of UN institutions. Few international treaties expressly grant migrant

children and still less the children of irregular migrants the same right
to education enjoyed by nationals16. Second, even when access to educa-
tional facilities is provided for all children without distinction, this does
not mean that migrant children are guaranteed the same educational
standards, namely inclusive education17.
The International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families is the only international
treaty that expressly establishes the fundamental right of access to edu-
cation for every child of migrant workers, regardless of their legal sta-
tus, on the basis of equality of treatment with nationals18. The Con-
vention also prohibits any limitation of a childs access to public pre-
school educational institutions on the basis of his, or his parents,
irregular situation19. The Convention is the most comprehensive provi-
sion on access to school for irregular migrant children, but no developed
country has ratified it.
The 1960 UNESCO Convention against Discrimination in Educa-

16
The 1990 World Conference on Education for All devoted little attention to the
condition of migrant children, yet Article 3.4 of the World Declaration on Education for
All adopted by the Conference recommends active commitment to remove educational
disparities, and mentions migrant workers and refugees among underserved groups
which should not suffer any discrimination in access to learning opportunities. The fol-
lowing Dakar Framework for Action, Education for All adopted at the World Education
Forum in 2000, confirms, without further elaboration or discussion, that inclusion of dis-
advantaged groups, including migrant populations, must be an integral part of strategies
to achieve universal primary education by 2015.
17
For a critical statement on the shift from the concept of right to education to
the less binding concept of access to education in contemporary legal discourse, see
Human Rights Council, The right to education of migrants, refugees and asylum seekers.
Report of the Special Rapporteur on the right to education, Vernor Muoz, UN Doc.
A/HRC/14/25, 2010, para. 25.
18
This right is clearly established as a right of the child rather than a right attributed
to all migrant people. Indeed, equality of treatment with nationals in access to educa-
tional institutions is granted to adult migrant workers and family members only when the
terms of their stay are authorized by the State of employment (see Articles 43 and 45 of
the Convention).
19
Article 30: Each child of a migrant worker shall have the basic right of access
to education on the basis of equality of treatment with nationals of the State con-
cerned. Access to public pre-school educational institutions or schools shall not be re-
fused or limited by reason of the irregular situation with respect to stay or employ-
ment of either parent or by reason of the irregularity of the childs stay in the State of
employment.
252 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

tion has a much broader scope of application20. The Convention is

UNESCOs primary normative instrument, and it is also an important
source of guidelines for the interpretation of non-discrimination clauses
in other international law instruments21. Article 3(e) of the Convention
mentions, among the five main action to be undertaken by Member
States, their obligation to give foreign nationals resident within their ter-
ritory the same access to education as that given to their own nationals.
Regrettably, Article 3(a) is limited to foreign residents, thus irregular mi-
grants seem to be excluded. Moreover, Article 3(e) explicitly refers to ac-
cess to education, and not to the more comprehensive concept of right to
education which includes, beyond mere access, the standard and qual-
ity of education, and the conditions under which it is given22. Thus, it
seems difficult to infer directly from this rule a duty of States to adopt
positive measures to promote school inclusion and academic success of
foreign children residing in their territories. Furthermore, the prohibi-
tion, under Article 3(c), of any differences of treatment by the public
authorities between nationals, except on the basis of merit or need, in the
matter of school fees and the grant of scholarships or other forms of as-
sistance, implicitly allows limitations to be placed on foreign pupils ac-
cess to these benefits.
The Geneva Convention relating to the Status of Refugees and the Con-
vention relating to the Status of Stateless Persons seem to endorse a more
comprehensive concept of non-discrimination in education. Under Arti-
cle 22.1 of the Refugee Convention Member States shall accord to
refugees the same treatment as accorded to nationals with respect to el-
ementary education (Article 22 of the Stateless Persons Convention is
worded in identical terms). The norm generally refers to treatment with
reference to elementary education, therefore the equality of treatment
between refugees or stateless persons and nationals shall be extended to
any positive measure adopted by the State to improve the quality of ele-
20
The Convention counts 101 Member States, and almost all the developed coun-
tries ratified it.
21
For example, Committee on Economic Social and Cultural Rights, General com-
ment No. 13 (1999), The right to education (Article 13 of the Covenant), cit., para. 31. On
the role of the UNESCO Convention in the international system of educational rights see
SINGH, The Right to Education: International Legal Obligations, in International Journal
for Education Law and Policy, 2005, p. 104.
22
See the definition of the term education for the purpose of the Convention in
Article 1.2.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 253

mentary education in terms of its four main aspects, i.e. availability, ac-
cessibility, acceptability and adaptability, and to any social aid23. Further-
more, since refugee status depends on the existence of the conditions es-
tablished in Article 1(A), and not on recognition by the State, the rule also
applies to those whose application for refugee status is pending. In com-
pliance with this principle, Article 14 of Directive 2013/33/EU, laying
down standards for the reception of applicants for international protec-
tion, requires Member States to grant to minor children of applicants
and to applicants who are minors access to the education system under
similar conditions as their own nationals. Regrettably, education may be
provided in accommodation centres, and the quality of education pro-
vided in such settings is unlikely to match the quality of education in
mainstream schools. Furthermore, States can delay access to the educa-
tion system for up to three months from the date on which the applica-
tion for international protection was lodged24. Therefore, asylum seek-
ers, both inside and outside reception and identification centres, quite
often face de facto and legal restrictions on their access to education25.
In addition to the specific provisions just mentioned, the practice of
all international human rights bodies supports the principle of the full
and equal right to education of all children, including migrants, regard-
less of the regularity of their presence in the territory of Member States.
It goes without saying that general non-discrimination clauses contained

23
Concerning other educational levels, under Article 22.2 of both Conventions
States shall accord to refugees or stateless persons treatment as favourable as possible,
and, in any event, not less favourable than that accorded to aliens generally in the same
circumstances, with respect to education other than elementary education. Thus, de-
spite its primary value in granting equal treatment to refugees and nationals concerning
elementary education, this provision allows for different treatment between nationals and
aliens at all levels of non-elementary education.
24
Directive 2013/33/EU of the European Parliament and of the Council of 26 June
2013 laying down standards for the reception of applicants for international protection (re-
cast), OJ L180/96, 29.6.2013. Moreover, Article 11 of the same Directive, while estab-
lishing that where minors are detained, they shall have the possibility to engage in
leisure activities, including play and recreational activities appropriate to their age, does
not mention their right to receive education during detention.
25
See, among recent documents, Committee on the Rights of the Child, Concluding
observations on the combined third and fourth periodic reports of Croatia, UN Doc. CRC/-
C/HRV/CO/3-4, 13 October 2014, para. 56(e); Concluding observations on the combined
third, fourth and fifth periodic reports of Hungary, UN Doc. CRC/C/HUN/CO/3-5, 14
October 2014, para. 52(c).
254 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

in all human rights treaties apply fully to the right to education pro-
claimed in those same treaties. As stated by the CESCR, the prohibition
against discrimination enshrined in article 2 (2) of the Covenant is sub-
ject to neither progressive realization nor the availability of resources; it
applies fully and immediately to all aspects of education and encom-
passes all internationally prohibited grounds of discrimination26.
Even though differential treatment based on citizenship or immigra-
tion status is not expressly mentioned as a prohibited ground of dis-
crimination, general clauses of non-discrimination have repeatedly been
interpreted broadly, especially with reference to access to education. A
paradigmatic example is the Convention on the Elimination of Racial
Discrimination. Under Article 1.2, the Convention shall not apply to
distinctions, exclusions, restrictions or preferences made by a State Party
to this Convention between citizens and non-citizens. Despite this ex-
plicit exclusion, the Committee on the Elimination of Racial Discrimina-
tion, in its General Recommendation No. 30, stated that although some
rights, such as the right to participate in elections, may be confined to cit-
izens States parties are under an obligation to guarantee equality be-
tween citizens and non-citizens in the enjoyment of civil, political, eco-
nomic, social and cultural rights to the extent recognised under interna-
tional law27. Consequently, differential treatment based on citizenship
or immigration status will constitute discrimination if the criteria for
such differentiation, judged in the light of the objectives and purposes of
the Convention, are not applied pursuant to a legitimate aim, and are not
proportional to the achievement of this aim28. Not only shall States ab-
stain from discrimination, they also have a positive obligation to remove
obstacles that prevent the enjoyment of economic, social and cultural
rights by non-citizens, notably in the area of education29. More specifi-
cally the Committee highlighted the requirement for States to ensure
that public educational institutions are open to non-citizens and children
of undocumented immigrants residing in the territory of a State party30.
Committee on Economic Social and Cultural Rights, General comment No. 13
26

(1999), The right to education (Article 13 of the Covenant), cit., para. 31.
27
Committee on the Elimination of Racial Discrimination (CERD), General Recom-
mendation No. 30, Discrimination against Non-citizens, Sixty-fourth session, 2004, UN
Doc. CERD/C/64/Misc.11/rev.3 (2004), para. 3
28
CERD, General Recommendation No. 30, cit., para. 4.
29
Ibidem, para. 29.
30
Ibidem., para. 30.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 255

The duty to avoid segregated schooling and different standards of treat-

ment being applied to non-citizens is not limited to elementary and sec-
ondary school, but extends to access to higher education31.
In the Convention on the Rights of the Child, the general non-dis-
crimination principle proclaimed in Article 2 is confirmed in Article
28.1. This principle applies to every child within the jurisdiction of a
State, and therefore extends to non-nationals, irrespective of their legal
status32. Furthermore, Article 29.1(c), stipulating that education should
foster respect for the national values of the country in which the child is
living and from which he or she may originate, focuses specifically on the
education of non-national children 33. The Committee on the Rights of
the Child, in its General Comment No. 6, Treatment of unaccompanied
and separated children outside their country of origin, underlined the need
to ensure that access to education is maintained during all phases of the
displacement cycle, and to grant every unaccompanied and separated
child, irrespective of status [], full access to education in the country
that they have entered34. Far from being limited to primary education,
this right extends to vocational and professional training for adolescents
and to early learning programmes for young children35.
From the above brief outline of the normative framework and prac-
tice of human rights bodies it can be concluded that a general principle
of international law entitles all migrant children, regardless of their sta-
tus, to access to education on equal terms with national children. Never-
theless, even when equal access to education is formally granted, migrant
children often come up against material and legal obstacles that limit

31
Ibidem, para. 31.
32
See VERHEYDE, Article 28: The Right to Education, in ALEN, VANDE LANOTTE,
VERHELLEN, ANG, BERGHMANS, VERHEYDE and ABRAMSON (eds.), A commentary on the
United Nations Convention on the Rights of the Child, 2006, p. 39.
33
On the importance of balancing different values in education, see Committee of
the Rights of the Child, General Comment No. 1 (2001), Article 29(1): the Aims of Edu-
cation, UN Doc. CRC/GC/2001/1, 17 April 2001, para. 4: part of the importance of this
provision lies precisely in its recognition of the need for a balanced approach to educa-
tion and one which succeeds in reconciling diverse values through dialogue and respect
for difference. Moreover, children are capable of playing a unique role in bridging many
of the differences that have historically separated groups of people from one another.
34
Committee on the Rights of the Child, General Comment No. 6 (2005), Treatment
of unaccompanied and separated children outside their country of origin, UN Doc.
CRC/GC/2005/6, 1 September 2005, para. 41.
35
Ibidem, para. 42.
256 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

their chances of actually receiving adequate education. Thus, even

though education systems in developed countries generally comply with
the need to ensure availability, accessibility, acceptability and adaptabil-
ity, it is to be questioned whether migrant children, who may have par-
ticular needs as a consequence of their background or status, or the sta-
tus of their parents, are truly guaranteed the 4-As. Indeed, the 4-A
scheme was recently revisited by the Special Rapporteur on the human
rights of migrants, Franois Crpeau, who considered that in order to en-
sure equal access to education for marginalised groups, such as migrants,
the focus should be on: (a) creating learning environments adapted to in-
clude every child without discrimination; (b) requiring schools to be re-
sponsive to the differing needs and strengths of all children, including
migrant children; (c) establishing institutions, policies and practices that
recognise and value diversity36. It is the responsibility of the State to
adopt the measures necessary to guarantee migrant children full, effec-
tive and inclusive education. Still, States are allowed a large margin of ap-
preciation in determining the nature and scope of such measures, and in
the balancing of competing interests.

3. Protection of migrant childrens right to education under the European

Convention of Human Rights

The right to education is laid down both in the European Conven-

tion of Human Rights, in Article 2 of the First Protocol, and in the Re-
vised European Social Charter, whose Article 17.2 requires Member
States to provide to children and young persons a free primary and sec-
ondary education as well as to encourage regular attendance at schools.
Contrary to what we have seen at the universal level, where the content
of the right to education is set out in detail in the texts of treaties, in both
the European conventions the right is described in quite basic and con-
cise terms. Indeed, within the framework of the Council of Europe the
fullest acknowledgement of the right to education is provided, as usual,
by case law, mainly of the European Court of Human Rights.

Report of the Special Rapporteur on the human rights of migrants, Franois Crpeau,
36

submitted in accordance with Assembly resolution 68/179, UN Doc. A/69/302, 11 August

2014, para. 63.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 257

Under Article 2 of Protocol No. 1 to the European Convention on

Human Rights:

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 con-
victions.

The first sentence of Article 2 of Protocol No. 1 was formulated in

the negative in order to avoid imposing positive obligations on Member
States to establish or to subsidise educational institutions of any particu-
lar type or at any particular level. Nevertheless, in the Belgian linguistic
case the Court affirmed that there is no doubt Article 2 (P1-2) does en-
shrine a right37. As regards the content of this right and the extent of
positive obligations placed upon States, the Courts view was that since,
at the time of the opening of the Protocol to their signature, all the Mem-
ber States of the Council of Europe already possessed a general and of-
ficial education system, the issue was not to require States to establish
such a system, but rather to guarantee to persons subject to the juris-
diction of the Contracting Parties the right, in principle, to avail them-
selves of the means of instruction existing at a given time38.
By referring to existing education systems, Article 2 of Protocol No.
1 leaves the member states a wide margin of appreciation as to the re-
sources to be devoted to educational institutions and as to their organi-
sation, provided that the substance of the right is not injured39. Never-
theless, like any right and freedom enshrined in the Convention, the right
to education granted by Article 2 Protocol No. 1 must be interpreted

37
European Court of Human Rights, Case Relating to Certain Aspects of the Laws
on the Use of Languages in Education in Belgium v. Belgium (Merits), cit., para 3. On the
scope of Article 2 Protocol No. 1, see, among others, Articolo 2 Protocollo 1, Diritto al-
listruzione, in BARTOLE, DE SENA, ZAGREBELSKY, Commentario breve alla Convenzione
europea dei diritti delluomo, Padua, 2012, p. 813 ff.; JACOBS, WHITE, OVEY, The Euro-
pean Convention on Human Rights, Oxford, 2010, p. 506.
38
European Court of Human Rights, Case Relating to Certain Aspects of the Laws
on the Use of Languages in Education in Belgium v. Belgium (Merits), cit., para. 3 (em-
phasis added).
39
See SACCUCCI, Diritto allistruzione e discriminazione scolastica di minori stranieri,
cit., pp. 307-308.
258 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

and applied in a manner which renders it practical and effective, not

theoretical and illusory. This is all the more important in the light of the
paramount value that the Court attaches to the right of education as an
empowerment right:

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 Article 2 of Protocol
No. 1 would not be consistent with the aim or purpose of that provi-
sion40.

Thus, far from limiting the scope of the right to education granted by
Article 2 Protocol No. 1, the fact that the content of the right is defined
in reference to national provisions allows it to be applied to the whole of
the education system existing at any given time, from primary and sec-
ondary education to higher education and university institutions41. Con-
sequently, whether it is read alone or in conjunction with the non-dis-
crimination provision of Article 14 of the Convention, Article 2 Protocol
No. 1 applies at all levels of education on a non-discriminatory basis to
every person subject to the jurisdiction of the State, whether national or
foreign, and irrespective of whether his situation is regular or not.
Hence, any limitation or different treatment reserved for foreigners or
undocumented migrants must necessarily pursue a legitimate aim and be
based on objective and reasonable justification. Just as the States margin
of appreciation increases with the level of education, and in inverse pro-
portion to the importance of the education for those concerned and for
society at large, reasonable justifications for differential treatment, too,
will vary according to the level of education to which they apply42. Thus,
while limiting access to university for non-resident migrants or imposing
higher university fees for aliens can be considered fully justified on eco-
nomic grounds43, there exists no legitimate aim or reasonable justifica-

40
European Court of Human Rights (Grand Chamber), Case of Leyla Sahin v.
Turkey, Application no. 44774/98, Judgment of 10 November 2005, para. 137.
41
Ibidem, para. 136 : While the first sentence of Article 2 essentially establishes ac-
cess to primary and secondary education, there is no watertight division separating
higher education from other forms of education.
42
European Court of Human Rights, Case of Ponomaryovi v. Bulgaria, Application
no. 5335/05, Judgment of 28 November 2011, para. 56.
43
Nevertheless, in the Case of Ponomaryovi v. Bulgaria, cit., the Court considers that
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 259

tion for limiting the right of any child to elementary education which is
of primordial importance for a childs development44.
In the light of the fundamental importance of primary education, and
acknowledging that Article 14 requires, under certain circumstances, dif-
ferential treatment in order to correct inequalities, the Court went on to
develop a framework of positive obligations on States to facilitate, or at
least not to hinder, access to quality education for children belonging to
vulnerable groups. Even though such cases mainly concern children
from Roma national minorities, the principles developed by the Court
must be extended to migrant children who are in similar precarious sit-
uations45.
First, the Court held that competent authorities should facilitate the
registration of children, avoiding excessive formalities, even in the ab-

in a modern society, having no more than basic knowledge and skills constitutes a bar-
rier to successful personal and professional development. It prevents the persons con-
cerned from adjusting to their environment and entails far-reaching consequences for
their social and economic well-being (para. 57). Consequently, even the proportionality
of the measure affecting access to free secondary education deserves stricter scrutiny
by the Court (para. 57).
44
European Court of Human Rights, Case of Timishev v. Russia, Applications nos.
55762/00 and 55974/00, Judgment of 13 December 2005, paras. 64-66. In the Timi-
shev case the applicants children were refused admission to school because the appli-
cant had surrendered his migrants card and had therefore forfeited his registration as
a resident. The Court took into account the circumstance that Russian law did not
allow the exercise of the childs right to primary education to be made conditional on
the registration of parents residence, thus the applicants children were denied the
right to education provided for by domestic law. Nevertheless, it is extremely unlikely
that any domestic law allowing such conditionality in patent violation of other human
right obligations would be consistent with Article 2 of Protocol No. 1, considered in-
dependently or in conjunction with Article 14 (see VAN DIJK, VAN HOOF, Theory and
Practice of the European Convention on Human Rights, third ed., The Hague, 1998, p.
654).
45
De jure and de facto discrimination against Roma and Gypsy populations in Eu-
rope has been the object of numerous institutional actions and recommendations in the
framework of the Council of Europe. Despite some relevant common features between
the situations of Roma and migrant children, this paper focus specifically on migrants;
thus, only case law and provisions manifestly relevant to migrant children will be men-
tioned. For deeper analysis on the Roma case, see the complete and detailed monograph
of GYNTHER, Beyond Systemic Discrimination. Educational Rights, Skills Acquisition and
the Case of Roma, Leiden/Boston, 2007; for a more concise view from an Italian per-
spective, see ROZZI, Discriminazioni dei minori rom e sinti rispetto al diritto allistruzione:
uno sguardo socio-giuridico, in BONETTI, SIMONI, VITALE (a cura di), La condizione
giuridica di Rom e Sinti in Italia, Milano, 2011, pp. 941-968.
260 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

sence of some of the required documents46. The application of this prin-

ciple is particularly important in the case of children of irregular migrants,
given that their parents will not have all the necessary documents at their
disposal, or will be reluctant to present any documents they do have to
public authorities for fear of being discovered and eventually deported.
The second important principle concerns integration in mainstream
classes. Landmark judgments on this issue are D.H and Others v. The
Czech Republic and Oru and Others v. Croatia47. These cases are partic-
ularly important because, in them, the Court defined indirect discrimi-
nation and laid down the overall system of rules concerning burden of
proof for such discrimination, in relation to access to mainstream educa-
tion48. But for the purposes of this paper, the most significant aspect is the
way the Court addressed the issue of linguistic segregation in the Orsus
case, as the argument used by the Court is also likely to be applied in re-
lation to the issue of special classes for migrant children lacking sufficient
command of the language of their host country49. In the Orsus case

The Court considers that temporary placement of children in a sepa-

rate class on the ground that they lack an adequate command of the lan-
guage is not, as such, automatically contrary to Article 14 of the Con-
vention. 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. However, when such a measure dispro-
portionately or even, as in the present case, exclusively, affects members
of a specific ethnic group, then appropriate safeguards have to be put
in place50.

46
European Court of Human Rights, Case of Sampanis and Others v. Greece, Appli-
cation no. 32526/05, Judgment of 5 June 2008, para. 86.
47
European Court of Human Rights (Grand Chamber), Case of D.H and Others v.
The Czech Republic [GC], Application no. 57325/00, Judgment of 13 November 2007;
Case of Orsus and Others v. Croatia, Application no. 15766/03, Judgment of 16 March
2010. Further, the Court confirmed its case law in several occasions: European Court of
Human Rights, Case of Sampanis and Others v. Greece (2), Application no. 59608/09,
Judgment of 11 December 2012; Case of Horvth and Kiss v. Hungary, Application no.
11146/11, Judgment of 29 January 2013; Case of Lavida and Others v. Greece, Applica-
tion no. 7973/10, Judgment of 30 May 2013.
48
On this point see the analysis of SACCUCCI, Diritto allistruzione e discriminazione
scolastica di minori stranieri, cit., pp. 312-316.
49
This is a quite recurrent issue in Italy. See section 5 of this chapter.
50
European Court of Human Rights, Case of Orsus and Others v. Croatia, cit., para. 157.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 261

In the light of the further development of the Courts reasoning in

this decision, such safeguards can be summarised as follows. First, the
placement of children in separate classes should be part of a common
and general practice designed to address the problems of children who
lack an adequate command of the [national] language51. Second, pupils
must be assigned to separate classes on the basis of tests specifically de-
signed to evaluate their language skills52. Third, the State adopting such
measures has the obligation to take appropriate positive measures to as-
sist the [pupils] in acquiring the necessary language skills in the shortest
time possible, so that they [can] be quickly integrated into mixed
classes53. Fourth, individual reports must be drawn up on each child
and his progress in the target language so as to identify problem areas
that might then be addressed with additional measures54. Only in the
presence of strict compliance with these conditions would temporary
placement of migrant children in separate classes not constitute a viola-
tion of Article 14 of the European Convention combined with Article 2
Protocol No. 1. In any case, as mentioned, placing migrant children in
separate classes would be legitimate only when it is a necessary measure
to help them acquire the necessary language skills in the shortest time
possible and thus facilitate their rapid integration into mixed classes.
That said, it seems very unlikely that foreign children would learn the
language of their host country more rapidly in separate classes made up
only of foreign nationals, rather than in general classes where they would
be in constant contact with native speakers.
The last issue raised by the application of Article 2 of Protocol No. 1
to migrants is the possibility that a stay permit refusal or a deportation
order might be challenged on the grounds of its detrimental effect on the
right to education. This argument was presented to the European Com-
mission of Human Rights by 15 foreign students who claimed that their
expulsion from the United Kingdom would prevent them from continu-
ing their education. The Commission found the case to be manifestly ill-
founded because the refusal of permission to remain in the country can-
not [] be regarded as an interference with the right to education, but

51
Ibidem, para. 158.
52
Ibidem, para. 159.
53
Ibidem, paras. 165 and 172.
54
Ibidem, para. 175.
262 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

only as a control of immigration which falls outside the scope of Article

255. Furthermore, this interpretation was confirmed in cases concerning
young children of pre-school56 and primary school57 age. In a more re-
cent case, the Court endorsed the Commissions view in this instance
also on the strength of the circumstance that the deportation date had,
in any case, been fixed in order to allow the applicant to complete the
school year, and that he would likely be able to complete his secondary
education following his deportation (to Russia)58. In the light of the im-
portance the Court attaches to primary education, it seems reasonable to
assume that a case, under Article 2 of Protocol No. 1, could be mounted
in the event of an expulsion that might result a child being deprived of
any primary education59.

4. Migrant childrens right to education under European Union law

The right to education, and particularly the right not to be discrimi-

nated against when seeking access to educational institutions and welfare
benefits relating to education, is broadly protected under European
Union law. However, the large majority of legislation and European
Court of Justice case law in this regard concerns questions relating to Eu-
ropean citizens who exercised their right to freedom of movement or to
members of their families, who are excluded from present analysis.
Nevertheless, European Union law provides important rules on the
right to education that are applicable to migrant children. First, it has to
be considered that all norms of secondary legislation, or measures of im-
55
European Commission of Human Rights, Case of 15 Foreign Students v. the United
Kingdom, Application no. 7671 /76 and 14 other applications, Decision of 19 May 1977.
56
European Commission of Human Rights, Case of Jaramillo v. the United Kingdom,
Application no. 24865/94, Decision of 23 October 1995; Case of Sorabjee v. the United
Kingdom, Application no. 23938/94, Decision of 23 October 1995.
57
European Commission of Human Rights, Dabhi v. the United Kingdom, Applica-
tion no. 28627/95, Decision of 17 January 1997.
58
European Court of Human Rights, Case of Vikulov and Others v. Latvia, Applica-
tion no. 16870/03, Decision on admissibility of 25 March 2004, under section 11. Refer-
ence to possibility of pursuing secondary education was also made in the 15 Foreign Stu-
dents decision, while, quite surprisingly, no mention of possibility of receiving primary
education was contained in Dabhi case.
59
See also VAN DIJK, VAN HOOF, Theory and Practice of the European Convention on
Human Rights, cit., p. 653.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 263

plementation, affecting the lives of migrant children must be read in the

light of Article 14 of the EU Charter of Fundamental Rights, which es-
tablishes that everyone has the right to education and to have access to
vocational and continuing training, and that this right includes the
possibility to receive free compulsory education. Article 14 is based on
the common constitutional traditions of the EU Member States and on
Article 2 of Protocol No. 1 to the European Convention on Human
Rights, and must be interpreted consistently with the case law of the Eu-
ropean Court of Human Rights illustrated in the previous section. Thus,
it confirms the principle that all children, regardless of their nationality
or regularity of residence, are guaranteed a non-discriminatory right of
access to educational institutions. Furthermore, by virtue of its positive
wording (everyone has the right), the inclusion of vocational and con-
tinuing training, and the explicit reference to free compulsory education
to be assured by the State, Article 14, by itself, seems to offer more ex-
tensive protection than Article 2 of Protocol No. 1 does. Conversely, like
all provisions of the Charter, Article 14 is addressed primarily to the Eu-
ropean Union institutions and at the Member States only when they are
implementing EU law (Article 52 of the Charter).
Secondary legislation of the European Union in the field of immi-
gration and asylum seems to cater adequately, albeit not perfectly, for the
right to education, at least of children. Indeed, an overview of relevant
directives shows that all third-country national children living in the Eu-
ropean Union are entitled to access education.
In addition to Article 14 of Directive 2013/33/EU, mentioned in sec-
tion 2 of this chapter, Article 27 of Directive 2011/95/EU stipulates the
obligation to grant full access to the education system to all minors
granted international protection, under the same conditions as nation-
als60. Under Directive 2001/55/EC, Article 14, equality of treatment
with nationals is also granted to children who are beneficiaries of tem-
porary protection61. Under Article 11.1(b) of Directive 2003/109/EC,

60
Directive 2011/95/EU of the European Parliament and of the Council of 13 De-
cember 2011 on standards for the qualification of third-country nationals or stateless per-
sons as beneficiaries of international protection, for a uniform status for refugees or for
persons eligible for subsidiary protection, and for the content of the protection granted
(recast), OJ L337/9, 20.12.2011.
61
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on measures
264 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

long-term resident third-country nationals enjoy equal treatment with

nationals as regards education and vocational training, including study
grants in accordance with national law62; regrettably, States may restrict
this right by requiring proof of appropriate language proficiency for ac-
cess to education and training (Article 11.3(b)).
The most important rules to consider, for the purposes of this paper,
are Articles 14 and 17 of Directive 2008/115/EC on the return of illegally
staying third-country nationals63. Article 14.1(c) requires States to ensure
that minors are granted access to the basic education system during
the period for voluntary departure and during periods in which their re-
moval may have been postponed, while Article 17.3 grants access to ed-
ucation to minors in detention. The significance of these rules is the fact
that they apply, by definition, to children who are in an irregular situa-
tion and are destined to leave the host country within a short space of
time. They therefore show that the principle that all children, irrespec-
tive of the regularity of their status, have the right to education is one that
is fully integrated into the European Union legal system. Furthermore,
since the Directive must be interpreted in conformity with Article 14 of
the Charter of Fundamental Rights, reference to basic education in Ar-
ticle 14.1(c) is to be interpreted as covering the whole cycle of compul-
sory education.
To the extent that access to education of all children, irrespective of
their immigration status, constitutes a principle of European Union law,
any de jure or de facto curtailment of this right, any obstacle imposed by
the State to its exercise, or even any reluctance to remove existing obsta-
cles to its exercise in the implementation of European Union law would
raise issues of infringement of the law.

promoting a balance of efforts between Member States in receiving such persons and
bearing the consequences thereof, OJ L 212/12, 7.8.2001.
62
Council Directive 2003/109/EC of 25 November 2003 concerning the status of
third-country nationals who are long-term residents, OJ L 16/44, 23.1.2004.
63
Directive 2008/115/EC of the European Parliament and of the Council of 16 De-
cember 2008 on common standards and procedures in Member States for returning ille-
gally staying third-country nationals, OJ L 348/98, 24.12.2008.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 265

5. Protection of migrant childrens right to education under the Italian

legal system

To conclude this overview of the legal framework for the protection

of migrant childrens right to education, it seems appropriate to mention
the relevant provisions in place in Italian law.
Article 34.1 of the Italian Constitution states that school is open to
all. Paragraphs 2 to 4 of the same Article specify that primary educa-
tion, imparted for at least eight years, is compulsory and free; and that
the Republic renders effective the right of capable and deserving pupils
to attain the highest levels of education through scholarships, allowances
to families, and other benefits. The constitutional rule refers to all chil-
dren and pupils without any distinction based on citizenship. In line with
this constitutional rule, Article 38 of the Consolidated text of provisions
concerning immigration and the status of foreigners64 establishes that
foreign children present in Italian territory are subject to compulsory ed-
ucation; and that all provisions concerning the right to education, access
to education, and participation in the life of the school community apply
to them. To ensure that access to school is profitable, Article 38.2 pro-
vides for the establishment of specific Italian language courses. Article 45
of the implementing rules65 confirms that the right to education is
granted to every child regardless the regularity of his immigration status,
and that registration can be requested at any time during the school year.
To avoid the risk of parents in an irregular situation deciding not to reg-
ister their children in school for fear of being reported to migration au-
thorities, Article 6.2 of the Consolidated text of provisions concerning
immigration expressly establishes that there is no need to produce a res-
idence permit when registering a child for compulsory education66. Al-
though the reference is to compulsory education, any attempt to interpret

64
Decree no. 286/1998 as amended.
65
Presidential Decree no. 394/1999, 31 August 1999, as amended.
66
In its original formulation, Article 6.2 excluded from the requirement to produce
a residence permit all acts concerning civil the registry and access to public services. The
rule was amended by Law n. 94/2009 (called Security Package), with the general purpose
of marginalising and criminalising undocumented migrants (see, for the effects of the law
on migrant children, MIAZZI, PERIN, Legge n. 94/2009: peggiora anche la condizione dei
minori stranieri, in Diritto, immigrazione, cittadinanza, 2009, pp.178-209). After its entry
into force, Law n. 94/2009 was amended several times due to rulings of the Italian Con-
stitutional Court and the European Court of Justice.
266 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

the rule as meaning that presentation of a residence permit can be re-

quested as a condition for access to non-compulsory education, namely
pre-school education, would be inconsistent with the constitutional rule
that school is open to all, and also with the international principle of
non-discrimination in access to school illustrated in the previous para-
graphs. Indeed, attempts by local authorities to limit irregular migrant
childrens access to pre-schools and even to kindergartens have been
judged illegitimate by both higher public authorities and the judiciary67.
In the Italian school system, compulsory education is completed
upon graduation from secondary school or after at least three years of
certified vocational training68. Because secondary school graduation gen-
erally occurs after the age of eighteen, young migrants who have turned
eighteen may stay in the country until they graduate69. Any other prac-
tice would be inconsistent both with the constitutional provisions on the
right to education and with Article 2 Protocol No. 1. Indeed, the right to
education is effective only if the individual who is the beneficiary
[has] the possibility of drawing profit from the education received, that
is to say, the right to obtain, in conformity with the rules in force in each
State, and in one form or another, official recognition of the studies
which he has completed70.
Even though normative proposals and experimental schemes aiming
at setting up separate classes for foreign children lacking a basic com-
mand of the Italian language are periodically presented71, school segre-

67
Ministry of Interior, Circular Note, Protocol No 2589, 13 January 2010; Court of
Milan, Order of 11 February 2008. For more references and comments see ASGI, Minori
stranieri e diritto allistruzione e alla formazione professionale. Sintesi della normativa vi-
gente e delle indicazioni ministeriali, 2014, available at http://asgi.it/wp-content/up-
loads/2014/05/1_0014_scuola_def_asgidocumenti.pdf; MIAZZI, PERIN, Legge n. 94/2009:
peggiora anche la condizione dei minori stranieri, cit., pp.199-205; BIONDI DAL MONTE,
Dai diritti sociali alla cittadinanza: la condizione giuridica dello straniero tra ordinamento
italiano e prospettive sovranazionali, Torino, 2013, pp. 185-187.
68
Law no. 296, of 27 December 2006, Article 1.622.
69
See Consiglio di Stato, Judgment n. 1734 of 27 February 2007.
70
European Court of Human Rights, Case Relating to Certain Aspects of the Laws
on the Use of Languages in Education in Belgium v. Belgium (Merits), cit., para. 4; Kjeld-
sen, Busk Madsen and Pedersen v. Denmark, Applications nos. 5095/71; 5920/72;
5926/72, Judgment of 7 December 1976, para. 52.
71
In 2008 a proposal for the institution of temporary separate classes was approved
by the First Chamber of the Parliament (Camera dei Deputati, Mozione 1-00033, Cota,
14 October 2014), but subsequently abandoned; a similar proposal was presented to the
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 267

gation is, in principle, avoided in the Italian system72. The ministerial cir-
cular note no. 2 of 8 January 201073 establishes that the number of
pupils with non-Italian citizenship in each class will normally not exceed
30% of the total number enrolled. Regrettably, this proportion is the
result of a balanced distribution of students without Italian citizenship
between the institutions present in a given area. In practice, since mi-
grants tend to live in poorer and more disadvantaged districts, the ratio
is often reversed in schools located in such districts, while those located
in wealthier districts are more likely to be attended exclusively by Italian
students.
Finally, the Italian legal system contains a fundamental provision that
would be useful, under certain circumstances, for challenging a refused
stay permit or a deportation order in situations in which deportation
would result in a student being unable to complete his full cycle of school-
ing. Under Article 31.3 of the Consolidated text of provisions concerning
immigration, Juvenile Courts can authorise members of a childs family to
enter or to stay in Italian territory for a definite period for serious reasons
related to [a childs] mental and physical development74. Italian Court of
Cassation case law concerning the application of this rule ranges from
very restrictive interpretations to more progressive decisions. The major-
ity of judgments case law relating to this norm make reference to health
protection, family relations and attachment between children and their
environment75. However, some cases specifically refer to school integra-
tion. In several cases, the Court of Cassation has ruled that interrupting
compulsory education is an ordinary consequence of the deportation of a
child, and thus does not constitute a serious reason justifying the au-
thorisation to stay76, whereas on one occasion the Court affirmed that the
Parliament on 21 march 2013 by Caparini and other MPs, see Atti parlamentari XVII
Legislatura, n. 416, but never approved. A separate class was created, on the personal ini-
tiative of the school principal, in a school in Bologna in 2013.
72
See Article 45.3 of Presidential Decree no. 394/1999.
73
Ministry for Education, Universities and Research (MIUR), C.M. No 2, 8 January
2010; see also, MIUR, Linee guida per laccoglienza e lintegrazione degli alunni stranieri,
Protocol No 4233, 19 February 2014.
74
It goes without saying that by permitting adult members of the family to stay Ar-
ticle 31.3 indirectly protects the child from being obliged to leave the country to follow
them.
75
See also the chapter by PISTOIA in this volume.
76
Court of Cassation, 1st Civil Section, Judgment n. 4197, 19 February 2008; Court
of Cassation, 1st Civil Section, Judgment n. 5856, 10 March 2010.
268 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

distress caused to the child by having to move to another country and, as

a result, interrupt his schooling, did constitute a serious reason to be
taken into account77. In fact, interpreting the scope of Article 31.3 to
cover cases in which deportation might result in a child being deprived
of an adequate, or at least minimum, standard of education seems to be
perfectly in line with the purpose of the rule, which is to safeguard a
childs correct mental and physical development. Indeed, in the light of
the importance unanimously attached to education as a factor indispen-
sable to the development of a childs personality, it seems self-evident
that interrupting education would result in serious and irreparable dam-
age to a child in any situation in which it is not reasonable to assume that
he might subsequently be rapidly integrated into another educational
system.

5. Conclusion

In the light of the assessment that education is both a human right in

itself and an indispensable means of realising other human rights, the au-
thor has tried to provide a comprehensive overview of the international
and European norms guaranteeing the right to education of children
who, for whatever reason, leave their country of origin. The picture out-
lined reveals an overall system in which every child, without exception,
is considered entitled to access compulsory education. In European
countries (where, under national law, compulsory education often lasts
up to the age of eighteen years), this principle covers both primary and
secondary education. Furthermore, with regard to the aims and content
of the right to education, as interpreted and detailed by human rights
monitoring bodies at universal level, States are required to ensure that
education is available, accessible, acceptable and adaptable to every
child, according to his situation or particular vulnerabilities. This means
that States have a positive obligation not only to adopt all the measures
necessary to allow migrant children, even undocumented ones, to regis-
ter in school, but also to create learning environments adapted to differ-
ing needs and strengths of migrant children.
Despite the whole body of international norms pertaining to the fun-

77
Corte di cassazione, 1st Civil Section, Judgment no. 15676, 21 June 2013.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 269

damental principle of non-discrimination between children in relation to

access to primary and secondary education, equality is still a long way
from being achieved. As a matter of fact, legal and material factors often
prevent migrant children and teenagers from attending school regularly,
or force them to drop out before completing their education. The de-
tention of children in centres for undocumented migrants and the pre-
cariousness of their situation or the situation of their families are only the
main examples of such factors. Furthermore, schools required to inte-
grate migrant children are faced with a number of material difficulties.
This is namely due to lack of human and material resources necessary to
fill the gap due to insufficient knowledge of national language, to im-
paired curricula followed by children in their home countries, and some-
times to migrants different cultural approach to school.
Even though international rules clearly highlight an obligation to re-
move all such obstacles, this obligation still suffers the lack of justiciabil-
ity characterising economic and social rights. Indeed, in international
law, the most extensive protection of migrant childrens right to educa-
tion is provided by Article 13 of the Covenant on Economic, Social and
Cultural Rights, and Articles 28 and 29 of the Convention on the Rights
of the Child, as interpreted by respective Committees general com-
ments. But the Optional Protocol to the Covenant on Economic, Social and
Cultural Rights78, which gave the Committee on Economic, Social and
Cultural Rights competence to receive and consider communications
from individuals or groups, entered into force only on 5 May 2013 and
only a few European Union Member States have ratified it79. Even fewer
have ratified the Optional Protocol to the Convention on the Rights of the
Child on a Communications Procedure80, which came into force on 14
April 201481. So far, no individual complaint concerning curtailments of

78
Adopted by General Assembly by resolution A/RES/63/117 of 10 December
2008, and opened for signature on 24 September 2009, UN Doc. A/63/435.
79
At the time of writing this chapter (5 October 2015), the Protocol has been rati-
fied by 21 States. Among the European Union Member States only Belgium, France, Fin-
land, Italy, Luxemburg, Portugal, Slovakia and Spain have ratified it.
80
Adopted by General Assembly of the United Nations by resolution
A/RES/66/138 of 19 December 2011, and opened for signature on 28 February 2012.
81
At the time of writing this chapter (5 October 2015), the Protocol has been rati-
fied by 19 States. Among the European Union Member States only Belgium, Germany,
Ireland, Portugal, Slovakia and Spain have ratified it.
270 PART II. THE PROTECTIVE RESPONSE TO CHILD VULNERABILITY

the right to education for migrant children has been presented to these
Committees.
In the European system, positive obligations to remove obstacles are
rather less defined. Nevertheless the living instrument approach to the
interpretation of the European Convention on Human Rights, combined
with the principle that conventional rights must be applied in a manner
which renders them practical and effective, not theoretical and illusory,
should give to the Court the possibility to enlarge the scope of Article 2
Protocol No. 1 in order to guarantee migrant children better protection.
Furthermore, the full potential of the European Social Charter as a guar-
antee of the right to education of migrants has not yet been explored by
NGOs entitled to submit collective complaints to the European Com-
mittee of Social Rights.
CHAP. X. MIGRANT CHILDRENS RIGHT TO EDUCATION 271

Selected References

BARTOLE, DE SENA, ZAGREBELSKY, Commentario breve alla Convenzione europea

dei diritti delluomo, Padova, 2012.
BEITER, The Protection of the Right to Education by International Law, Leiden,
2005.
DELBRCK, The Right to Education as an International Human Right, in German
Yearbook of International Law, 1992, p. 92 ff.
GYNTHER, Beyond Systemic Discrimination. Educational Rights, Skills Acquisi-
tion and the Case of Roma, Leiden, 2007.
MCCOWAN, Education as a Human Right: Principles for a Universal Entitlement
to Learning, London, 2013.
NOWAK, The Right to Education, in EIDE, KRAUSE, ROSAS (eds.), Economic, So-
cial and Cultural Rights, second ed., Leiden, 2001.
PISILLO MAZZESCHI, PUSTORINO, VIVIANI (a cura di), Diritti umani degli immi-
grati. Tutela della famiglia e dei minori, Napoli, 2010.
VERHEYDE, Article 28: The Right to Education, in ALEN, VANDE LANOTTE, VER-
HELLEN, ANG, BERGHMANS, VERHEYDE, ABRAMSON (eds.), A commentary on
the United Nations Convention on the Rights of the Child, Leiden, 2006.