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Undocumented children and the right to education: Illusory right or empowering lever?

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Abstract

In migration control policies, social rights are often restricted in order to discourage immigration. The right to education seems to be the exception to the rule. This paper examines whether the right to education - beyond legal technical questions of the personal scope of application of human rights treaties, and the nature and the meaning of the right - is able to provide empowering leverage to undocumented children, or rather remains a lofty ideal on paper. Empirical data are drawn from the Belgian situation. Sociological research has shown that while quantitative educational democratisation has been highly successful, qualitative educational democratisation remains problematic. With regard to undocumented children, real-life limitations to school access (both individual and institutional), as well as psycho-social and institutional impediments during the schooling process seriously limit equal schooling and life opportunities. Unequal responses to organisational and pedagogical challenges that the presence of mobile students puts to schools, reinforce institutional factors of educational inequality for undocumented children. A key factor in understanding the tension between the legal recognition of the human right to education and daily realities is the outright contradiction between the approaches towards education on the one hand, and to migration more generally on the other hand. The latter is increasingly dominated by a securisation ideology.
The Right to Education of Undocumented Children: illusory right or empowering leverage?
Wouter Vandenhole, Helene Marie-Lou De Clerck, Marie Verhoeven, Christiane Timmerman, Paul
Mahieu, Julie Ryngaert and Estelle Carton de Wiart
Abstract
In migration control policies, social rights are often restricted in order not to encourage immigration. The
right to education seems to be the exception to the rule. This paper examines whether the right to
education beyond legal technical questions of the personal scope of application of human rights
treaties, and the nature and the meaning of the right is able to provide empowering leverage to
undocumented children, or rather remains a lofty ideal on paper. An empirical base is provided by the
Belgian situation. Qualitative sociological research has shown that while quantitative educational
democratisation has been highly successful, qualitative remains problematic. With regard to
undocumented children, real-life limitations to school access (both individual and institutional), as well
as psycho-social and institutional impediments during the schooling process seriously limit equal
schooling and life opportunities. A key factor in understanding the tension between the legal recognition
of the human right to education and daily realities is the outright contradiction between the approaches
towards education on the one hand, and to migration more generally on the other hand. Unequal
responses to organisational and pedagogical challenges that are put to schools by the presence of
mobile students reinforce institutional factors of educational inequality for undocumented children.
Keywords
Right to education undocumented children migration – contextual analysis – educational
democratisation
Introduction
The current paper aims to contribute to the existing knowledge about the relevance in practice of the
human right to education for undocumented children.
The realisation of the right to education remains a crucial but complex issue for undocumented children,
which requires further in-depth investigation. First of all, there is a need to clarify the personal scope of
application of international treaties that guarantee this right, in order to examine whether and to what
extent they include undocumented (migrant) children. Although human rights treaties emphasize that
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education is a fundamental right per se as well as an “empowerment right”, the full enjoyment of this
right is not necessarily guaranteed, as human rights still depend to a certain extent on citizenship. Yet,
courts and monitoring bodies tend to favour broad access to fundamental rights, irrespective of
nationality or legal status (often by invoking notions such as “protection of vulnerable categories” or of
“prohibition of discrimination”). The complexity of a variety of sources of law and diverging
interpretations may lead to contradictions or confusion, and is still in need of further clarification.
In a broader approach to the right to education, attention is paid not only to the legal recognition of the
right, but also to the context, i.e. the economic, social and institutional conditions which can guarantee a
particular group to fully enjoy this right, in a non-discriminatory and equal opportunity framework. In this
framework, the question is whether equality of opportunities effectively exists for a particular vulnerable
group, within a given educational system. In this paper, we examine whether the right to education for
undocumented children is an illusory right, or whether it really has an empowering potential in the lived
reality of these children and their parents. Access to schooling as well as broader conditions of equal
opportunities will be simultaneously examined, in a bi-disciplinary perspective crossing law and
sociology.
The Belgian situation serves as an empirical basis for our exploration. Belgium is indeed a particularly
interesting case to examine the full realisation of the right to education, due to its “paradoxical process
of educational democratization” (Dupriez & Verhoeven, 2007). Research has shown that, whereas
quantitative democratisation seems to have been successful (access to basic education has been
practically generalized since the beginning of the 20th century, and Belgian school attendance rates are
among the highest at an international scale), the qualitative democratization of education remains
unsatisfactory and even preoccupying. As far as social equality of opportunities is concerned, Belgium
lags seriously behind among OECD countries, as social and economic factors still impact considerably
on individual school performance (see for eg. PISA analysis in Dupriez et al., 2008). The situation is
particularly alarming as far as migrant pupils are concerned, as indicators of educational delays, school
drop-out and non-attendance are much higher for this group. These inequalities can be observed at the
level of school entrance, in the type and quality of school careers, and in school attainments (Mahieu,
2002; Duquet et al., 2006; Verhoeven et al., 2007; Opdenakker & Hermans, 2006). It may be assumed
that these educational inequalities will be even more outspoken for undocumented migrant children, as
this group often cumulates legal restrictions in access to the enjoyment of rights with a high degree of
unequal educational opportunities throughout their school careers.
2
Surprisingly, given the clear human rights and social justice dimensions, there is a lack of research on
the educational situation of undocumented children in Western Europe. In Belgium, it is only recently
that this population has received more academic attention (see, e.g., Leman, 1995 & 1997; Van Broeck,
1999; Adam et al., 2002; Grzymala-Kazlowska, 2005; Paspalanova, 2006). Two factors have contributed
to this increase in scholarly attention. Firstly, a steady increase in the number of foreign minors has
taken place (basically linked to new migratory patterns, particularly family reunification patterns involving
more directly women and children); moreover, within this group of foreign minors, the attention has been
drawn to an increasing number of unaccompanied minors (Timmerman et al., 2009). Notwithstanding
these recent studies, there are still empirical and theoretical knowledge gaps concerning the situation of
undocumented foreign minors in Belgium. Literature on their educational situation is particularly scarce.
Recent research on schooling trajectories of migrant pupils in French-speaking Belgium (Verhoeven et
al., 2007) has identified general patterns of inequalities, but has not explored in-depth the special case
of undocumented pupils. The few available studies on the educational situation of undocumented
children in Belgium (Bafekr, 1999; Pannecoucke, 2008; see also, Meeteren et al., 2008) remain limited
in scope. They have however shed light on some important empirical elements, as they have underlined
a range of obstacles to the enjoyment of the right to education for undocumented children: these
children experience more difficulties in gaining access to education, due to individual, social and cultural
barriers; schools must often step in financially to pay for school materials, additional sports and cultural
activities, medical expenses, etc.; school attendance is comparatively low; parents-school
communication is often problematic; parents tend to be unavailable for educational support as they are
having a hard time finding adequate employment and housing, or fighting to get financial and legal
assistance or even medical healthcare (Heyse & Nieuwenhuyze, 2008); and finally, these children
experience learning difficulties. Although they have contributed to put the issue of undocumented
children’s educational opportunities on the research agenda, these studies often lack a general
theoretical perspective.
This paper purports to contribute to filling this gap, by providing a more comprehensive and detailed
approach of the human right to education for undocumented children in law and in fact. It spells out the
legal, social and institutional conditions for full implementation of this right, in a non-discriminatory
framework. This paper builds on the findings of a one-year (2008-2009) research project carried out by
a multidisciplinary team of Flemish and Walloon research partners1. Target population was restricted to
1The research team consisted of the Centre for Migration and Intercultural Studies at the University of Antwerp with Prof. Dr.
Christiane Timmerman and Helene Marie-Lou De Clerck; the Interdisciplinary Research Group in Socialisation, Education
and Training (GIRSEF) at the Catholic University of Louvain, with Prof. Dr. Marie Verhoeven and Estelle Carton de Wiart; the
UNICEF Chair in Children’s Rights at the faculty of rights at the University of Antwerp with Prof. Dr. Wouter Vandenhole and
Julie Ryngaert; and the Institute for Education and Information sciences at the University of Antwerp with Prof. Dr. Paul
3
primary school pupils (age 6-12) for reasons of feasibility and because research shows the determinant
effect of cumulated inequalities during primary schooling (Verhoeven et al., 2007). The general objective
was to make a comprehensive assessment of the educational situation of undocumented children in
primary schools through triangulation of disciplines and research methods. The guiding research
questions were therefore related to the complex legal framework to be taken into account, to the
quantitative and qualitative description of the population of undocumented children attending primary
school in Belgium (localization and composition of the group in terms of ethnicity, country of origin,
family situation, migration regime, etc.) and to the concrete social and institutional conditions that need
to be in place in order to allow for full implementation of the right to education in primary schools.
Special attention has been given to institutional factors leading to unequal educational opportunities and
inappropriate educational orientation, and to pedagogical and organisational challenges faced by
schools due to the presence of undocumented pupils, in different contexts (urban/rural areas, type of
governing body (catholic schools with public subventions or public schools) and position on the
educational “quasi market”2 in terms of social composition, levels of attainments and school delay).
In what follows, first the legal framework of the right to education as a fundamental human right is
introduced. We then turn to the findings of our qualitative sociological research conducted in seven
single school cases. Our focus lays on the understanding of the way professionals and undocumented
parents experience the education of undocumented children. Unfortunately, the undocumented children
themselves were not directly involved in the survey, for practical and timing reasons which will be
explained later. Quantitative results of the research are not discussed in this paper. The quantitative
dimension of the research remained underdeveloped because access to official databases was denied
to the research team for both political and legal reasons, and more fundamentally, because of
methodological and ethical difficulties in carrying out quantitative research on a population which is both
“invisible” through official identification criteria and reluctant to be identified.3
Mahieu. The study was conducted at the request of the Centre for Equal Opportunities and Opposition to Racism and the
Support point for combating poverty, insecurity and social exclusion, and funded by the Belgian Science Policy as part of its
Action in support of the federal authority’s strategic priorities.
2 The education system in Belgium is often assimilated to a quasi market, which refers to a hybrid mode of regulation,
combining public funding with market mechanisms (parental “free” school choice, funding depending on number of students
attracted by each single school, competition between schools within local spaces of interdependency, etc.). This situation has
clearly reinforced the hierarchical differentiation between schools, which can be very contrasted in terms of social
composition, educational offer, indicators of attainments, school drop out, laying back etc.
3 Despite the incompleteness and lack of consensus on the available figures, the estimations made by Timmerman et al.
(2009) and Bouckaert (2007) show that there is a significant group of undocumented children attending primary school in
Belgium. Timmerman et al. (2009) estimated that a total of 1375 pupils with a foreign nationality (=coming from countries not
members of the EEA, or with an American, Australian or Canadian nationality) and having no state registration number were
enrolled in schools in Flanders in 2007-2008. Based on data from 2001 Bouckaert (2007) estimated that a total of 5866
children living in Belgium but without the Belgium nationality and with no state registration number attended schools in
Belgium (1335 in Flanders and 4531 in Wallonia).
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1. The human right to education
While the right to education has been recognized in core human rights treaties as well as in numerous
constitutions, including the Belgian constitution, it is less clear whether it unconditionally and in full
applies to undocumented children too. We therefore first succinctly explore what the approach of human
rights monitoring bodies has been on the applicability of human rights provisions to undocumented
children, before we discuss the legal content of the right.
A. Do undocumented migrant children have human rights?
Human rights law, including children’s rights law, does not guarantee a right to migrate or a right to
reside in a country of one’s own choosing. The European Court of Human Rights (ECt.HR), which
monitors the European Convention on Human Rights (ECHR), maintains that States retain control over
their territory and decide who comes in and who goes out:
It is the Court's settled case-law that as a matter of well-established international law, and subject to their treaty
obligations, including those arising from the Convention, Contracting States have the right to control the entry,
residence and removal of aliens (…).
(ECt.HR 28 February 2008, Saadi v Italy, § 124)
Nevertheless, States have to respect their treaty obligations when exercising control over foreigners.
From a legal perspective, human rights do not automatically belong to every human being. Human
rights law, including children’s rights law, requires a certain link between an individual and a State. That
link is often established through the notion of jurisdiction, which tends to be given a primarily territorial
meaning: an individual comes under the jurisdiction of a State if he or she finds himself on the territory
of that State. While States have sometimes tried to argue that undocumented migrants do not come
under their jurisdiction for lack of residence title, that approach does not seem to be accepted by courts
and monitoring bodies.
However, whenever a human rights treaty defines itself quite restrictively its personal scope of
application, it may become more difficult to also cover undocumented migrants. The Revised European
Social Charter (RESC), e.g., limits its scope of application to own nationals of the State Party
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concerned, with limited exceptions for foreigners. Only those foreigners who are “nationals of other
Parties lawfully resident or working regularly within the territory of the Party concerned”, can invoke the
rights guaranteed by the RESC (Appendix to the Revised European Social Charter).
Notwithstanding the clear text, the European Committee of Social Rights (ECSR) has examined already
twice whether undocumented migrant children come to some extent within the personal scope of the
Charter. With regard to the right to medical assistance, the Committee has held “that legislation or
practice which denies entitlement to medical assistance to foreign nationals, within the territory of a
State Party, even if they are there illegally, is contrary to the Charter” (ECSR 8 September 2004,
International Federation of Human Rights Leagues v France, no. 14/2003, § 32). It has equally accepted
that some elements of the right to housing (art. 31) and the right of children and young persons to
social, economic and legal protection (art. 17) apply to undocumented children. Central to its reasoning
seem to be three interconnected arguments. First of all, the Committee emphasizes that the ECSR is a
living instrument that is dedicated to certain basic values such as dignity, autonomy, equality and
solidarity. It therefore needs to be interpreted teleologically. Secondly, it points out that restrictions on
rights need to be read restrictively, so that the essence of the fundamental right is kept intact. Thirdly, it
submits that the restriction on the personal scope in the Appendix impacts differently on each of the
social rights guaranteed in the Charter, in light of the relationship of the right concerned with the
underlying basic values. Moreover, as the Committee added more recently, a restriction “should not end
up having unreasonably detrimental effects where the protection of vulnerable groups of persons is at
stake” (ECSR 20 October 2009, Defence for Children International v the Netherlands, no. 47/2008, §
37). The Committee considers children unlawfully present on the territory of a Party a vulnerable
category of persons, to whom in addition the best interests principle applies (§ 38).
Applied to the right to medical assistance, the Committee argued that the right to medical assistance is
“connected to the right to life itself” and that it “goes to the very dignity of the human being” (ECSR 8
September 2004, International Federation of Human Rights Leagues v France, no. 14/2003, § 30). It
held that “health care is a prerequisite for the preservation of human dignity” (§ 31). With regard to the
right to housing, the Committee has held that children, regardless of their residence status, come within
the personal scope of Article 31, § 2 and Article 17 RESC. The former obliges States to prevent and
reduce homelessness with a view to its gradual elimination. The latter guarantees to children the right to
appropriate social, legal and economic protection.
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The ECSR has not yet had the opportunity to clarify explicitly whether the right to education comes
under the personal scope of application of the Charter. The right to primary and secondary education is
provided for in art. 17, § 2 RESC. Given the unqualified submission that “children, whatever their
residence status, come within the personal scope of Article 17 of the Revised Charter” (ECSR 20
October 2009, Defence for Children International v the Netherlands, no. 47/2008, § 66), it is most likely
that the Committee will consider the right to primary and secondary education to be applicable to
undocumented migrant children.
The United Nations treaty monitoring bodies too tend to extend human rights protection to
undocumented migrants. The Committee on the Rights of the Child, which monitors the 1989
Convention on the Rights of the Child (CRC), has clarified the implications of the CRC for the treatment
of unaccompanied and separated migrant children. It has emphasized that the obligations incumbent on
States Parties to the CRC apply to every child within a State’s territory and subject to its jurisdiction,
regardless of nationality or immigration status, so that the enjoyment of the rights stipulated in the CRC
cannot be limited to children who are citizens of the State concerned (CRC, 2005). With regard to the
right to education, it has held that every child, “irrespective of status, should have full access to
education (…) in line with articles 28, 29(1), 30 and 32 of the Convention and the general principles
developed by the Committee” (CRC, 2005). The Committee on Economic, Social and Cultural Rights
(ESCR Committee), which monitors the 1966 International Covenant on Economic, Social and Cultural
Rights (ICESCR), has equally extended the personal scope of the right to education to undocumented
children by submitting that “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.”
(ESCR Committee, 1999, § 34). In sum, undocumented children cannot be denied the human right to
education.
B. The human right to (primary) education4
The importance of the human right to education has been emphasized time and again. In the words of
the ESCR Committee
Education is both a human right in itself and an indispensable means of realizing other human
rights. As an empowerment right, education is the primary vehicle by which economically and
socially marginalized adults and children can lift themselves out of poverty and obtain the
means to participate fully in their communities.
4 An in-depth discussion of the right to education can be found inter alia in Verheyde, 2006.
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(ECSR Committee, 1999, § 1).
The right to education has been legally recognized in core human rights treaties, both on civil and
political rights, and on economic, social and cultural rights. While the former tend to emphasize the
liberty dimensions for parents (i.e. the liberty to choose education in line with their personal convictions,
see e.g. art. 18 International Covenant on Civil and Political Rights; art. 2 Protocol 1 to the ECHR), the
latter provide a more comprehensive understanding of the right to education, mainly from the
perspective of children themselves (see, in particular, art. 13 ICESCR). The CRC too dedicates an
article to the right to education, and one to the objectives of education (art. 28-29 CRC).
An authoritative interpretation of the right to education has been provided by the ESCR Committee in its
General Comment No. 13 on the right to education. In line with its template for analysing each of the
rights in the ICESCR, it has identified the following four “interrelated and essential features” of the right
to education:
-sufficient availability of functioning educational institutions and programmes;
-accessibility of educational institutions and programmes to everyone, physically, economically
(i.e. affordable) and on a non-discriminatory basis, in law and in fact, especially for the most
vulnerable groups;
-acceptability of form and substance, including curricula and teaching methods; and
-adaptability to changing needs of societies and students (ESCR Committee 1999, § 6).
While generally speaking economic, social and cultural rights are to be realised progressively only (art.
2, § 1 ICESCR; art. 4 CRC), with regard to the right to primary education art. 13 ICESCR provides in an
unqualified way that “primary education shall be compulsory and available free to all”. The ESCR
Committee has interpreted this provision as meaning that the introduction of compulsory, free primary
education is to be prioritized: “The obligation to provide primary education for all is an immediate duty of
all States parties.” (ESCR Committee 1999, § 51). It has equally emphasized that the prohibition of
discrimination is subject to neither progressive realization nor the availability of resources, and that “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” (ESCR Committee 1999, §§ 31 and
34). Article 28 CRC is phrased in weaker terms, as it subjects compulsory and free primary education to
the qualified obligation of progressive realisation. However, as the most conducive provision to the
realisation of the right to primary education is to be given priority in light of article 41 CRC, for many
States the more demanding obligation under art. 13 ICESCR will prevail.
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C. The right to (primary) education for undocumented children in Belgium: law and policy
Unlike the overall tendency to restrict the enjoyment of social rights for undocumented foreigners on
Belgian soil, including children, a different approach has been taken with regard to the right to
education. Already in 1994, it was decided to open the school gates for undocumented children, and to
subject them to compulsory schooling from the age of six (similar to documented children). In the federal
state of Belgium, education belongs to the competences of the communities, i.e. the Flemish, French
and German Community. While no specific normative framework on education for undocumented
children has been adopted in the German Community, the Flemish and French Communities’
frameworks share broadly similar principles.5 First of all, undocumented children are subjected to
compulsory schooling. Schools are to register them as regular pupils. As regular pupils, their education
is subsidized as for any other pupil. In addition, they are eligible for specific programmes (for which
additional funding is provided) that target non-native speakers who have recently arrived, or that focus
on equal opportunities. If they pass, undocumented children receive a certificate like other pupils.
The relationship between the enjoyment of the right to education and migration policies remains uneasy.
On the one hand, it is provided for that schools do not have to report the registration of undocumented
children to immigration and police authorities, nor should these authorities seek to identify
undocumented children through the schooling system. Moreover, the removal from the territory of
families with children in school is suspended until the end of the school year. So, in different ways, the
right to education seems to prevail over migration policies. On the other hand, neither registration nor
school attendance or acquiring a school certificate leads to any guarantee let alone right with regard to a
residence title, the asylum procedure or the application of migration law, which includes also provisions
on reception and social assistance (Circular letter GD/2003/03 of 24 February 2003; Décret 30 juin 1998
visant à assurer à tous les élèves des chances égales d'émancipation sociale, notamment par la mise
en œuvre de discriminations positives; Circulaire relative à l’éloignement de famille avec enfant(s)
scolarisé(s) de moins de 18 ans. Intervention des services de police dans les écoles, moniteur belge 13
juin 2003).
In conclusion, undocumented children can claim the right to education under international human rights
law, and this is fully accepted by both the Flemish and French Community in Belgium. An uneasy
5 In the Flemish Community, the legal basis is fairly weak, as the rules are provided for in a circular letter of the minister for
education. In the French Community, a formal law (“décret”) has codified the applicable rules.
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relationship between education provisions and migration policies nevertheless persists. Legally
speaking, the right to education comprises availability, accessibility, acceptability and adaptability of
education. The right to primary education is to be realized immediately and without discrimination,
regardless of available resources.
2. The right to education in practice
While law is quite firm and ambitious regarding the right to education and its applicability to
undocumented children, and suggests also paying attention to its concrete conditions of
implementation, it remains to be seen to what extent these conditions are met in practice. This question
can only be addressed from an empirical sociological perspective exploring and comparing different
contexts. Therefore, a qualitative survey was set up within our research project, within a sample of
seven primary schools in contrasting settings.
Case studies (Yin, 1985) including in-depth interviews with key actors were carried out, in order to
understand the different elements contributing to possible restrictions to undocumented children’s right
to education, as they appear at the local school level, throughout institutional, organisational and
pedagogical mechanisms. Field practitioners and primary school staff were interviewed in order to
gather information on undocumented pupils schooling experience, in terms of opportunities and
obstacles, as well as on organisational and pedagogical measures developed in order to facilitate their
schooling. In-depth interviews were also carried out with undocumented parents, in order to assess their
own (positive and negative) experience with and perception of the educational situation of their children,
in terms of access and opportunities. Such a qualitative approach was considered to be crucial in order
to grasp the actors’ perspective and social representations, as we assume that the effective
implementation of a right is highly related to the way the actors involved (including the direct
beneficiaries) perceive this right and the possibility to actually exercise it, within a given social
environment, with its opportunities and constraints.
Seven primary schools (see Table 1) were selected on the basis of the following criteria: number of
undocumented children attending the school; specific features of the measures implemented by the
schools in respect of undocumented children; location of the school e.g., urban or not and
composition of the school population. In light of the human resources and timing constraints of the
funding, the inclusion of maximum three schools for the Flemish Community, three schools for the
French Community and one school from the German Community was feasible. Each school was
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approached as a single case (Yin, 1985) with the aim of obtaining a holistic insight into the educational
processes of undocumented children within the school.
Table 1* Schools
Location School population (June 2009)
School 1 The school is located in the old part of a district of the
capital of Belgium, Brussels. This is one of Brussels
most densely populated municipalities, with almost
half the population of foreign origin.
The school has 139 pupils, including 22 children
enrolled in classes of language adaptation. According
to the head of the school the school mainly has an
immigrant population of which a majority live in difficult
socio-economic conditions.
School 2 The school is located in a rural village in the French
Community. 4.6% of the persons enrolled in the
National Register of the village are foreigners. There
is a reception centre for asylum seekers in the village.
The school counts 108 pupils of which 6 are
undocumented.
School 3 The school is located in a big city in the French
Community. The population of this city is constituted
for 70% of foreigners.
**
School 4 The school is located in the centre of a big city in the
Flemish Community. According to the head of the
school, there are many foreigners who have settled in
this area because of the availability of cheaper
houses.
The school has 244 pupils from 49 different countries.
30% of the children are non-native speakers.
According to the head of the school there are “many”
undocumented children among these non-native
speakers.
School 5 The school is located in a small village in the Flemish
Community. A school staff member describes the area
as an area with few foreigners.
The school counts 120 pupils of which 3 are siblings
from one undocumented family.
School 6 The school is located in a big city in the Flemish
Community.
The school has 333 pupils from 76 different
nationalities. Many pupils and their families find
themselves in a socially vulnerable position.
Regarding residence status there are 186 children of
whom the director suspects that they are
undocumented “because they do not have a national
register number”.
School 7 The school is located in a remote rural area in the
German Community. There is a reception centre for
asylum seekers of the Red Cross in the village.
The school has 80 pupils enrolled in primary
education and among them 12 children live in the Red
Cross reception centre. Children from the reception
centre usually stay only a few months in this school.
*The information presented in this table is based on information gathered during the data collection in the schools.
** No information was available.
For each case study, three types of respondents were addressed. In order to collect the perspective of
school practitioners we conducted in-depth interviews with the pedagogical staff – i.e., the head of the
school, (language) teachers and other pedagogical personnel involved. The interviews followed a
standard design, guided by a semi-structured topic-list. These interviews provided information on,
among other things, past and present school policy and particularly school efforts regarding migrant
pupils, and particularly undocumented pupils, the factors facilitating and impeding their school
attendance, the structural problems and stringencies faced by the children and their parents, the
effectiveness of the measures implemented and the educational development (outcomes, school
career…) of the children. For the seven case studies together, 33 interviews were organized with school
staff between May and August 2009.
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Subsequently, we conducted interviews with a number of undocumented parents (related, closely or not,
to the schools covered in the research), in order to understand the family migration and settlement
trajectory (mobility and housing issues, access to work, formation and social services,…), with special
attention for the issue of children’s access to education and schooling experiences. The parents were
contacted through the schools, and occasionally through the researchers’ own contacts. Despite a
certain reluctance from families to testify we were able to find 14 families willing to participate (see Table
2). If none of these families had a definite legal status, our sample included parents with different legal
situations, ranging from totally irregular situations (families without any legal documents, having never
introduced any demand or having stayed in Belgium after a refusal), to families with short-term
provisional documents. Depending on the wish of the families and on circumstances, interviews were
conducted with one parent or both. These interviews were conducted in a “socio-biographical”
perspective (diachronic stages of exile and settlement scanning different dimensions of social life);
however, in order to enhance consistency across research teams, all interviews were guided by a semi-
structured topic list. When necessary, the interviews were facilitated by an interpreter.
Table 2. Parents
Country of origin Family situation Length of stay in Belgium
Family 1 Ukraine A father, a mother and 3 daughters (8 months, 12
years, 14 years old).
10 years
Family 2 Nepal A father, a mother and one daughter (9 years old). 8 years
Family 3 Albania A father, a mother, 2 sons (13 years, 9 years old)
and 1 daughter (8 years old).
9 years
Family 4 Kazakhstan A father, a mother and 3 daughters (15 years, 7
years, 5 years old).
9 years
Family 5 Congo A father, a mother, a son (7 years old) and 2
daughters (5 years, 3 years old).
7 years
Family 6 Bulgaria A father, a mother and 4 children (15 years, 10
years, 4 years and a half, 3 years old).
4 years
Family 7 Bolivia A father, a mother and 4 children (17 years, 8 years,
1 year old).
8 years (the father); 6 years
(the mother); 2 years (the
children)
Family 8 Algeria A father, a mother and 2 children (10 years, 6
months old).
8 years
Family 9 Serbia A father, a mother and 4 children (19 years, 16
years, 16 years, 8 years old).
9 years
Family 10 Syria (Kurd) A single mother and 3 children (8 years, 4 years, 2
years old).
4 years
Family 11 Congo A single mother, 4 children (12 years, 9 years, 5
years, 1 year old) living in Belgium and 1 child (14
years old) living in Congo.
5 years
Family 12 Brazil A divorced mother, 2 children (12 years, 7 years old)
living in Belgium, 1 child (17 years old) living in
Brazil.
4 years (the mother); a few
months (the children)
12
Family 13 Brazil A father, a mother and one daughter (6 years old). 5 years
Family 14 Romania (Roma) A father, a mother and 4 children (14 years, 12
years, 7 years, 4 years old).
5 years
The collection of qualitative data ended with additional interviews with field practitioners external to
schools, but involved in support or service provision to undocumented families and/or children – such as
municipal or associative social services, social departments dedicated to migrants integration or to
general welfare (social workers, professionals of schooling assessment and orientation, mediators…) as
well as heads of school governing bodies etc.. This third round of interviews was useful in completing
the picture of the educational situation of undocumented children in the selected schools. Again, we
opted here for interviews by means of semi-structured questionnaires, using previous results of the
research – parents’ perspectives and the information from the school staff – as input. A total of 34 field
practitioners were interviewed6.
We did not explore the perspective of the undocumented children themselves. The reasons for this
omission are both methodological and practical. First of all, children attending primary education are still
young (6-12 years). Any appropriate in-depth evaluation of their experience would have required specific
and time-consuming research techniques e.g. direct observation and longitudinal follow-up which
were going far beyond the scope and the resources available for our project. Equally important the
research call wanted us to focus on the existing field expertise, “good practices” developed by schools
and experiences of undocumented parents. Parents were considered to be relevant informants in order
to reconstitute the key elements determining their children’s school careers, such as their migratory
trajectory, geographical mobility and the evolutions of their legal status. Moreover, as undocumented
parents are directly confronted with the school enrolment policy and the attitude of school actors
towards their children, they are the best placed to estimate the impact of their undocumented status on
the school career of their child.
The data we collected should rather be considered as a first understanding of a very complex and
multidimensional issue, which we could only explore in a restricted sample of schools, in a limited period
of time, and without involving children’s views. However, we tried to be methodologically rigorous in
diversifying informants and in contrasting our cases, alongside reasoned relevant criteria. Beyond the
understanding of actors’ experiences and representations in seven local contexts, we do hope that the
processes that were identified through the fieldwork allow for a certain “analytical generalisation” (Yin,
6 We chose not to present these field practitioners in a systematic table in order to preserve their anonymity, as required by a
majority of them.
13
1985) or at least for a first systematic reflection on the effective implementation of the right to education
for undocumented children.
In what follows, we will first examine the tensions and paradoxes observed in the implementation of the
right to education in our seven cases and point out several types of restrictions at a psycho-social and
institutional level (section A). In section B, we will turn to the concrete challenges and difficulties
emerging in schools when they are confronted with the presence of undocumented children. We will see
that the very characteristics of this undocumented migrant population as well as its ambiguous legal
status structurally undermines the possibility to elaborate coherent targeted measures – which may in
turn impede schools to develop adequate pedagogical and organizational responses to this changing
reality, as has been recommended by the ESCR Committee since 1999 (see above p 7). In these
circumstances, the full realisation of the right to education for undocumented children may well be a
distant ideal rather than a lived reality.…
A. The right to education for undocumented children: restrictions and paradoxes
Several tensions and paradoxes with regard to the realisation of the right to education for
undocumented children arose from the seven contexts investigated. Actors seem to oscillate between
trust and mistrust, satisfaction and disappointment, separation and integration, feelings of
discrimination, labelling or empowerment, feelings of failure or feelings of hope for a better future. A first
identified tension is related to the legal implementation of the right to education. Undeniable progress in
law was partly recognized by the actors. That legal progress in the implementation of the right to
education produces “real effects” (e.g. larger proportion of undocumented pupils in schools), but does
not seem to be sufficient yet to neutralize all kinds of obstacles in access to schools (i). The gap
between the law in books and in reality seems even wider in the educational process itself. Throughout
their schooling, undocumented children face a range of psychosocial, family and institutional factors of
vulnerability, which lead to unequal school careers and life opportunities (ii).
(i) Access to education: legal progress, limitations in practice
In general, school staff, undocumented parents and field practitioners tend to underline the positive
effects of international and national law on access to education for undocumented children. We
identified a widely shared feeling that access to education for undocumented children is all in all
guaranteed in Belgium. Many of the educational and social actors we spoke emphasised the positive
14
effects of legislation (French Community) or a circular letter (Flemish Community) that establishes the
right for undocumented pupils to be subsidized as any other pupil (see above, legal part p. 8). This
measure has obviously led to a change in the attitude of schools and to a major school coverage of this
population.
A field practitioner: “There are few cases where schools do not allow undocumented children, the law is there and
the legal obstacles are gone.”7
Moreover, the existence of a more consistent and policy constraining legal framework on children’ rights
- and on the right to education in particular - has progressively modified representations and attitudes of
undocumented parents themselves. According to some heads of school, families are most of the time
aware of their children’s right to education and address school with more confidence. Some interviewed
social workers have noticed increasingly less children with long periods of non-attendance. Ethnic
communities also play a key role in disseminating legal and administrative information regarding access
to education and available schools. In other words, having legal provisions ensuring access to
education for undocumented children is an undeniable asset, with positive impact on real educational
opportunities for these children.
However, the survey reveals that different kinds of obstacles still persist, which hinder access to primary
schools for undocumented children. First of all, according to some of our respondents, despite the
favourable legal framework, mistrust and fears are still present with undocumented families, especially
the ones who have never introduced any demand for regularization or who have stayed on the Belgian
territory after receiving a negative response; parents with unstable status (provisional papers, “in
process of regularization”) seemed to be more confident towards schools.). Economic vulnerability,
often as a direct consequence of an unstable legal situation, forms a second (sometimes
insurmountable) obstacle to full enjoyment of the right to education. Given the precarious economic
situation of their family, children experience basic deprivation such as hunger and lack of decent
clothes. Moreover, illegal status often has negative implications on access to other social rights, such as
scholarships or other kinds of social assistance. All these elements negatively impact their access to
education, in a direct or indirect manner.
A Congolese father: “My children are the same as other children, but they are not entitled to scholarships.
Education in Belgium is said to be free but in practice this is not the case. There is no right to education for
undocumented children. Having a registration right in a school is not yet having a right to education because there
7 All quotations are translated from Dutch or French.
15
are things to be paid like the clothing for the children and their food. If you have no right to financial assistance, can
you talk about a right to education? Because a right to education also means that the children have enough to eat.
If the house cannot be heated and the children get sick and cannot go to school, then they do not have education.”
In addition to individual and economic barriers, institutional impediments due to school attitude also
have to be underlined. Some of our respondents mentioned the more than reluctant attitude in some
specific schools’ enrolment policy. This reluctant attitude seems to stem either from discouragement
caused by the heavy administration when enrolling undocumented children or from a concern to
preserve a certain school image.
A field practitioner: “There is a right to education but the undocumented parents find no schools, some are full, but
other schools also don’t want to enrol many undocumented children. There is a taboo on the presence of
undocumented pupils at schools. Schools with many undocumented children are stigmatized. Schools don’t want
to bring the presence of their undocumented pupils under the public attention because they are afraid that it would
further keep the white parents away”.
So while some schools do accept and enrol undocumented pupils, others tend to refuse them and to
redirect them to other schools, labelled as “more open” to pupils with learning or language difficulties.
Therefore, the right to opt for the school of one’s own preference is actually limited for undocumented
families.
(ii) Unequal opportunities during the schooling process: some limitations to the full enjoyment
of the right to education
The enjoyment of the right to education for undocumented children is not only restricted at the level of
access to education. These children also experience a number of obstacles throughout the schooling
process. Some of these obstacles find their origins in the psychosocial consequences of exile and in the
intergenerational tensions within migrating families. The socio-economical vulnerability of these families,
related to parents’ restricted access to rights, constitutes another element which negatively impacts on
the schooling process. Finally, other obstacles are due to institutional factors related to the education
system itself, and in particular to inadequate orientation processes.
The obstacle most mentioned by our respondents was related to the psychosocial situation of the
undocumented children. Most of our interlocutors stress the specific psychosocial and emotional
vulnerability of undocumented children. Their precarious residence situation puts them and their family
16
in an extremely vulnerable psychosocial position which in turn restricts their right to education in
different ways. Our respondents often pointed out the negative consequences of irregular migration on
children’s psycho-affective well-being. Many teachers identified a number of traumas that were
attributed to the stress linked to living in irregular conditions, as well as to the situation of an unfinished
migration and of an uncertain future. Moreover, according to our respondents, undocumented families
seem to be more than others confronted to transnational long-term separation, divorce and family re-
composition, which can be a factor of affective vulnerability for children. The children were described as
insecure, anxious, sometimes angry, and in doubt about the meaning of their school commitment in the
medium or long term, as they were uncertain about their residence status. Although this vulnerability did
not always manifest itself in an extreme way (e.g. silence in classroom or aggressive attitudes),
teachers considered this vulnerability as a characteristic of undocumented pupils which they had to deal
with pedagogically. The parents also insisted on their children’s anxiety, negative self-image, shame or
simply incomprehension linked to the irregular status.
An Albanian mother: “My son knows that we don’t have papers. He is always asking why we don’t have papers,
and when I say this is because we are from Albania, he answers that he is Belgian. He doesn’t want other children
to know about our status. A person without papers is just nothing. I also feel like that.”
A Serbian mother: “My son N. has seen the life we have, without papers. He knows about this uncertainty. He
doesn’t see the point to get his school diploma, if any way he is not allowed to work!”
This Congolese mother explains how traumatic it has been for her and her children after receiving an
official negative response:
“We were always waiting, waiting, and the children were asking “Mum, why don’t we get the papers?”. That day,
when they told us that everything was finished, that there was no hope anymore, my children and I were totally
depressed. They didn’t sleep at all, we were all down”.
Our respondents identified an intergenerational rupture between the children and their parents, as
parents often learn the local language more slowly than their children and tend to experience more
radical forms of exclusion from rights and social relationships. This disparity can lead to a gap between
children and parents, in terms of language, culture and identity, which in turn may have emotional and
psychosocial consequences. School actors and field practitioners talked about parentification, meaning
that children tend to assume huge responsibilities towards their own parents and in the mediation
between their family and the host society.
17
A field practitioner: “The worst thing is when undocumented children see that their parents are depressed and that
happens quite often. The worst thing for a child is when your mother is not your mother anymore but is sad the
whole time; the children want their parents to assume their role of parent. In many cases when parents are
uncertain about their existence they transmit their concerns on their children. They take over a lot of stress of their
parents and there is much parentification, they assume their parents’ role. And this also affects their education.”
This intergenerational rupture lays on sociological as well as legal grounds: while the children
automatically benefit from children’s rights protection, and go through a process of social and school
integration, their parents do not benefit from the same rights and possibilities, as long as they are
considered as illegal migrants. We identified a certain asymmetry between undocumented children and
their parents regarding the access to rights. This gap was also observed in our interviews with the
parents, as most of them declared to be satisfied about the education their children received, while
some of them said to be regretting the lack of training possibilities for themselves, and were suffering
from the negative consequences of their irregular status.
A Congolese mother: “I would like to go to school too, I couldn’t do it in my country, I only got to third grade; but
without papers, I am not allowed too much. So my daughter helps me, she always brings me books from her school
so that I can learn from her books and start reading …”.
Ultimately, the realisation of the right to education is also undermined by the increased socio-
economical vulnerability frequently observed within undocumented families. Our interviews with parents
clearly show a relationship between the undocumented status on the one hand, and family socio-
economical vulnerability and limited access to social rights on the other. The loss of (even provisional)
legal papers leads most of the time to an increased social vulnerability (loss of social benefits and social
protection, restricted access to training programmes, prohibited access to the official job market and
increased dependency towards informal economy, …). Our data revealed serious psychological
difficulties endured by parents because of these precarious legal and material conditions, which in turn
have clear negative consequences for the children’s mental well-being.
A Serbian parent: “We had asked for asylum and first, they gave us CPAS (social support). With CPAS you find
housing, you can pay for charges and everything, you receive clothes. But then, they stopped everything, and
after we were in great difficulty, no papers, no nothing, no support. And the children were very unhappy at
school”.
All in all, it can be assumed that an undocumented status leads to psychosocial, affective and socio-
economical vulnerability, which undermines the learning conditions for children and ultimately restricts
their full enjoyment of the right to education.
18
However, schooling disadvantage and unequal opportunities for undocumented children are not only
due to such psycho-affective factors related to the family situation (and external to schools). Some
institutional processes within the educational system itself or within organisational rules also constitute a
significant limitation to the enjoyment of the right to education for these pupils, especially when they lead
to inadequate or inappropriate orientation and therefore actually restrict school careers. First of all, the
moment of the first arrival or initial orientation within the education system in Belgium is of crucial
importance. The collection of information for children’s school files often appears to be rather difficult
and sometimes impossible (when files have been lost or become unavailable due to exile), and
administrative problems with recognition of previous successfully passed grades and school attainments
occur frequently. In addition to these administrative barriers, inadequate initial orientation can also be
due to the existing gaps in appropriate educational diagnosis for undocumented children. Evidence from
school actors and undocumented parents indicates that these diagnoses do not take into account the
specific needs of undocumented children and the challenges arising from their precarious residence
situation. School professionals emphasize the lack of adequate psycho-pedagogical assessment and of
diagnostic tools that are linguistically and culturally adapted to such a population. Deficient orientation
may have negative consequences for undocumented children’s school motivation and career, as some
of them are placed in an inappropriate age group or level, and may therefore loose precious time or feel
completely “under” or “overqualified”. Moreover, inadequate diagnoses have an impact on the further
education process, as they lead to an over-orientation of undocumented pupils to special education, as
reported by school actors and some undocumented parents. These various institutional processes
structurally reinforce underachievement at the end of primary school, which in turn impacts on
undocumented children’s orientation to secondary education.
Finally, when attaining majority, education of undocumented children is often ended abruptly, or faces
insurmountable obstacles.
A field practitioner: “The biggest problem arises when the undocumented children become older. Not for the minors
who have according to the law the right to education until the age of 18 years. But for undocumented youngsters of
16 -17 years old who have been here in Belgium for 7-8 years and who are well aware of the situation that when
they will turn 18 they will no longer have that right it is a difficult situation. Some schools refuse to enrol them when
they are 18 years or older because they are no longer required to do so by the law. These adolescents have been
here for all those years, went to primary and secondary school in Belgium, obtained their diploma and got
integrated but everything comes to an end when they turn 18. ”
B. Educating undocumented children in practice: organizational and pedagogical challenges
19
We will now turn to the concrete challenges emerging in classrooms and in schools as organisations,
when faced with a significant number of undocumented children. After some general comments on the
lack of a clear educational policy regarding undocumented children in Belgian schools, we will point out
some of the negative side-effects of this situation on the development of local policy and expertise (i);
and then develop some of the main difficulties encountered in our case studies, at organisational (ii) and
pedagogical (iii) levels.
(i) The negative side-effects of a “non-policy”
As a starting point, most of our respondents pointed out a paradox: if undocumented children can claim
the right to education under international and national law, it is difficult for policy makers to develop an
educational policy towards a group which is regarding the migration policy actually not desirable on a
long-time scale, or even not theoretically allowed to be present on the Belgian territory.
A field practitioner: “There is the duality between the right to education for undocumented children and the fact that
these children are not allowed to be here because they are undocumented. As a policy maker you can never take
targeted measures for a group of people who are not allowed to be in the country. As a politician you cannot defend
targeted policies for undocumented children, because it's such a contradiction. For other groups as for example
deprived pupils, you can take targeted educational measures to help them, because those people are allowed to be
in Belgium, but undocumented pupils are not allowed. That’s why undocumented children cannot enforce their right
to education.”
Therefore, the lack of a policy regarding undocumented pupils in Belgian schools is not surprising.
Independently from the question whether targeted or generalist measures are requested here (which is
a complicated debate, on which we will come back later), no official guidelines are available for
professionals. As a result, each single school - and in some cases, each professional - is expected to
develop its own strategy in order to support those children’s schooling. This is done by using for
example pedagogical resources that are made available for other (documented) pupils (e.g. intercultural
or multilingual education). Although this certainly allows a certain degree of local creativity and
adaptation to the specific needs of the own school population, this situation is often experienced as
difficult by the school actors we met. Most of them feel abandoned to their own fate and criticize this
lack of public support, considering that a huge challenge such as ensuring the right to education for
undocumented children should not be left to local initiative and “bricolage”.
20
Beside this professional discontent, the lack of official policy produces several negative unexpected
consequences, which make it difficult to sustain a stable policy at the local school level. Heads of
schools willing to make additional resources available in order to welcome undocumented pupils or to
develop innovations have to call upon multiple sources of funding, which is synonymous of uncertainty
and complex administrative requests. If they get additional resources or additional staff, it tends to be on
a short-term basis (one-year projects and precarious contracts). Professional precariousness and
instability seem to be the rule, whereas accumulated expertise is requested.
A head of school: “It is always uncertain, always to be asked for, again and again, and this is a problem. I have
been able to hire a social worker, and she’s very capable. But each year, I can only offer her a 10 months
contract; she has no contract during summer holidays and therefore she is systematically unemployed during
two months a year, and she never knows for sure whether her contract will be renewed. (…) Not surprisingly, we
have had 4 different social workers within the past 5 years… I wish I could stabilize her job but it is not possible
in the actual framework”.
Finally, in a context of absence of official guidelines, each single school seems to elaborate a particular
response to this challenge, leading to very contrasting pedagogical and organisational practices,
according to the school positioning strategies on the “educational quasi market” (see note 2). In other
words, pedagogical choices (such as the type of pedagogical support offered to pupils) or organisational
decisions (such as opting for separated tracks or inclusive education, grouping per age or per
attainment level) have much to do with the way the school relates to its local environment, opts for a
local “niche” and tries to adapt to the expectations of some parents. The existence of such varied
responses from one school to another can be considered as an institutional factor of educational
inequality for undocumented children, as we will develop now.
(ii) Multiple pedagogical challenges and local responses
At the pedagogical level the presence of undocumented children in classrooms constitutes a real
specific challenge for teachers. Our case studies reveal that, while most teachers do not approach these
children as “undocumented” (and do not even necessarily think of undocumented status as an obstacle
to education), they do tend to define this population as “problematic”, as it is usually very mobile,
heterogeneous and unpredictable. Undocumented children are more of a challenge for teachers
because of their potential ongoing mobility due to new patterns of migration, than because of the
absence of legal documents (even though this situation of “ongoing mobility” is partly the result of legal
21
uncertainty). Ongoing mobility reinforces these families’ multiple axes of vulnerability and renders
pedagogical work more complex in several ways.
First of all, there is the challenge of teaching classes that are heterogeneous in culture, and in social
and schooling experience. Children of a particular age group might have reached very different learning
attainments, due to international mobility, interrupted school careers or multiple changes of education
system and languages. Our case studies revealed that teachers develop original creative pedagogical
responses to deal appropriately with this high degree of heterogeneity. Differentiated pedagogy within
the classroom (through tutorial systems involving other (more advanced) pupils, additional pedagogical
support (e.g. a teacher or a language assistant within the classroom) or the use of progressive
pedagogical material for e.g.) constitutes one of the possible responses; withdrawing the children from
the classroom in order to enhance their language, literacy and mathematics core skills seems to be
another possible strategy. But in any case, professionals insist on the need for active, singularized
pedagogical practices, appropriate to respond to pupils specific needs.
A second challenge, as mentioned earlier, is related to the specific psychosocial problems and
emotional vulnerability often observed in undocumented children, because of exile, family separations,
personal experience of violence, etc. Teachers struggle to create appropriate conditions allowing
children to rebuild their self-confidence and trust upon others, and to foster children’s emotional
development and identity building; calling upon psychological additional support (from other institutions)
can be of a great help, but again, this is not automatically available. Our fieldwork shows that local
responses vary, ranging from creating a sort of “separated cocoon” for newcomers (welcoming classes
essentially focussing on emotional aspects and the development of social and relational skills) to a quick
integration into the “normal” classes, with occasional psychological support when needed.
A third pedagogical challenge is related to the uncertain situation of undocumented families, and its
consequences on the definition of learning outcomes making sense for these particularly “mobile”
children. Their uncertain futures, the possibility of unexpected departures or frequent school changes
are not easily reconcilable with a sustainable and effective educational support. One of the key
questions raised by our informants was about the definition of a “relevant curriculum” for such an
unpredictable population.
22
A teacher: “But what should be taught to children of whom one does not know whether they will remain in this
school for two months, two years or for their complete primary education? What would be useful to them, in terms
of language, if they are forced to go back to their home country within a year?”.
Again, we observed different responses to this challenge according to our case studies. Whereas some
schools opt for concentrating on basic literacy and mathematic skills, other develop an interesting
reflection on what should be the content of such a “basic kit” useful for mobile children, in terms of social
and emotional skills, personal self-confidence and security, etc.
Finally, the school actors reported an almost complete lack of a pedagogical frame of reference to deal
with the various challenges raised by the presence of undocumented children. If some reference
frameworks exist, these are scarce and have mostly resulted from practices of individual teachers or
local initiatives – as they are not systematized nor made available at a more global level (e.g. in school
governing bodies or at the level of the government administration). Teachers seem to regret this lack
and call upon public responsibility. It seems quite clear that this situation leads to differentiated local
responses, whose effects on equal opportunities for undocumented children should be explored more
systematically.
(iii) Organizational challenges and strategies
At the organizational level, the presence of undocumented children raises several difficulties. First of all,
our informants report some practical difficulties in terms of getting proper funding or managing human
resources. For instance, heads of school struggle to get additional funding for a “non existing”
population (cf. supra). They also have problems estimating their school intake, as undocumented pupils
may arrive at any point throughout the school year, irrespective from official deadline for public
subsidies. Heads of school also stressed the difficulties of this unpredictable or changing intake in terms
of management of human resources: they are always “on the edge”, trying to accept enough pupils to
be able to maintain a stable staff at the beginning of the school year, but then taking the risk to become
oversubscribed (and understaffed) if many unexpected newcomers arrive later in the year.
Secondly, these elements might have significant negative consequences on the working conditions,
structurally unstable from one year to the other, and with a lot of flexibility efforts demanded throughout
the school year. More generally, the working conditions seem to be particularly demanding for school
staff. Interviews with teachers reveal an important commitment, in terms of additional working hours,
23
pedagogical creativity and emotional involvement. It is not surprising then, to observe an important
turnover amongst teachers in the investigated schools.
But not every school is ready to dedicate so much energy in integrating undocumented children. As a
consequence, according to many informants, the situation tends to polarize between on the one hand
some schools with a very open intake policy, developing a kind of specific expertise in educating “newly
migrated pupils”, and on the other hand schools who send undocumented families to other schools,
using their lack of expertise as an excuse to protect their dominant social and symbolic position on the
educational quasi market.
A head of school: “Here, we have an open intake policy. I accept everybody without any distinction of origin or status.
But some parents explain to me that they went to such or such school, and would be told: “you go first to X school
(meaning here!), and you come back here within a year or two, when your children has learnt French”…
In other words, this situation seems to have more general consequences on equal opportunities within
the educational system, with a risk of having a concentration of undocumented children in some
schools, at the expense of a more equal distribution of this population over a larger number of schools.
Thirdly, the presence of a significant proportion of undocumented children, as a particular mobile and
unpredictable school population, challenges the classical sense of “school order”, which usually requires
stable organisational conditions. Many school actors explain that frequent unexpected departures or
arrivals regularly disrupt the class order and the teaching-learning basic conditions. How to integrate in
concrete terms pupils arriving throughout the school year? How to guarantee adequate organisational
conditions for fluent and progressive pedagogical activities? Those are recurring preoccupations among
teachers. The issue of children’s entrance into the education system seems to be particularly crucial:
how and how long should be this transition? Our case studies reveal different ways to organize this
transition, from direct integration - allowing pupils to identify quickly to the whole school, but with a risk
of high heterogeneity and disruption within classrooms - to radical extended separation, aiming to
“protect” the local school balance, but not necessarily guaranteeing good integration conditions.
Beyond those practical organisational issues, the fundamental issue which is raised here is about the
pedagogical management of difference”. To what extent is it relevant to organize special classes
(welcome classes, cultural and linguistic adaptation classes, etc.) in order to support the newcomers’
adaptation to the educational systems? Would a more “inclusive” way to integrate these pupils not be
24
more appropriate and democratic? These are recurring questions among school staff in all our case
studies, particularly on the existing “bridge classes” in the French Community and the “welcome classes
for new comers” classes in Flanders. In the absence of clear policy or pedagogical guidelines, each
school has to come to terms with this key question on its own. Our case studies have revealed a tension
in schools between on the one hand ideal care for and participation of the undocumented children in
school life and their rapid integration into the mainstream curriculum, and on the other hand the need for
specific and separate treatment of undocumented children that allows for a fast improvement of
language proficiency and education level. Schools respond differently to this challenge: while some opt
for inclusion, others tend to isolate undocumented children for a longer period of time.
Globally, we put forward the hypothesis that schools facing these questions make divergent choices
depending on their educational project, their position on the educational quasi market, and the school
image they want to preserve. According to our observations, schools trying to maintain a “middle class"
intake in their school population tend to privilege strategies of pedagogical separation, opt for grouping
according to attainment levels (and not necessarily according to pupils’ age) and concentrate more
directly on basic core skills; on the other hand, schools occupying a more marginalized position on the
educational quasi market and “specialised” in educating migrant (deprived) pupils would privilege
inclusive pedagogical strategies and focus on other dimensions of the education process (such as
affective development and social skills). But this assumption would still need to be confirmed by a
systematic large-scale study.
To sum up, the absence of clear pedagogical and organisational guidelines supporting individual
schools to find an appropriate response to the presence of undocumented “migrating” pupils produces
many negative side-effects. Uncertainty and lack of clear frameworks causes unequal responses –some
schools develop very innovative and exciting approaches, other schools totally ignore this challenge or
simply fend themselves off from this particularly challenging population. These unequal responses
reinforce in turn institutional factors of educational inequality for undocumented children. The right to
education for undocumented children may therefore more often than not remain an unfulfilled promise
rather than a lived reality.
3. Conclusion
25
The right to education has been strongly established in international human rights law. It has meanwhile
also been affirmed repeatedly that the right to education applies to all children regardless of legal status.
Undocumented children therefore “have” a right to education. It is widely recognized, at least in
anthropological literature that enjoyment of human rights does not automatically flow from their legal
codification. Rights have to be struggled for, they are not simply granted. Our research has shown that
this struggle for the full enjoyment of the right to education for undocumented children is far from over in
Belgium. While the recognition of a right to education in domestic legislation has been a clear step
forward, undocumented children face a complex net of psycho-social and institutional impediments in
access to education and throughout their schooling process, which lead to unequal educational and life
opportunities in practice. These inequalities are compounded by the lack of proper guidance to schools
in addressing organisational and pedagogical challenges that arise from the presence of undocumented
children in their pupil population.
The complex and interwoven net of psycho-social and institutional impediments and barriers to the full
realisation of the right to education by undocumented children seems to be a symptom of a fundamental
tension educational policies for the implementation of the right to education on the one hand, and
restrictive migration and integration policies on the other hand. It looks like the full enjoyment of the right
to education by undocumented children will remain illusory and a distant promise as long as many other
of their own and their parents’ human rights are significantly curtailed in the execution of restrictive
migration and integration policies.
26
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... Embedded in the right to education is the right to be treated with respect in educational settings. Wouter Vandenhole et al. (2011) in a study of the Belgian context, shows with regard to undocumented children that real-life limitations to school access (both individual and institutional), as well as psychosocial and institutional impediments during the schooling process seriously limit equal schooling and life opportunities. A key factor, conclude Vandenhole et al. (2011), in understanding the tension between the legal recognition of the human right to education and daily realities for undocumented migrant children in school, is the outright contradiction between the approaches toward education on the one hand, and to migration more generally on the other hand. ...
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