On 10 April 2024, Cabinet approved the final White Paper on Citizenship, Immigration and Refugee Protection. It was gazetted on 17 April. The document outlines sweeping plans for reform, including increased border monitoring, establishing immigration courts and withdrawing from international and regional human rights instruments.

The Equal Education Law Centre is concerned about the impact that this will have on migrant and undocumented children’s rights — including the right to education.

The white paper refers to the 1951 United Nations Convention on the Status of Refugees and its 1967 Protocol. South Africa acceded to these instruments in 1996, without entering any reservations. But the Department of Home Affairs, at least according to the white paper, appears to have regrets about this.

The white paper states that “South Africa did not make any reservations in respect of the 1951 Convention and 1967 Protocol”. The document’s explanatory memorandum goes on: “These reservations mainly deal with socio-economic rights such as access to health, education, social welfare, [the] right to work and trade and others. This was a fatal mistake on the part of the government.

“It is not surprising that South African courts developed jurisprudence regarding asylum and refugees which is unfavourable to the interests of government.”

What does the department hope to achieve?

It is not explicit from the white paper what the Department of Home Affairs believes withdrawing from the UN Convention and Protocol would achieve.

Does the department hope that withdrawing would stifle future litigation that could further expand the rights of migrants and undocumented persons?

Does the department intend to repeal and enact new legislation that would, without any international obligations binding it, remove existing rights from migrants?

Neither perceived goal could, in its entirety, be achieved by the department when taking into account South Africa’s rights-based legal framework.

Attempts to remove existing rights from migrants and undocumented persons, like the right to education, would fail. The right to education is already a firmly entrenched right for migrant and undocumented children.

In the Centre for Child Law and Others vs Minister of Home Affairs, it was stated that the right to education belongs to everyone, regardless of nationality.

On this basis, and on the basis of a circular issued by the Department of Education urging schools and districts to comply with the judgment, many undocumented children who were previously unable to access schools have been enjoying the right to education.

Any action to now remove the right to education for migrants or undocumented persons would be an impermissible regression of rights: Section 7(2) of the Constitution places an obligation on the State that requires it to refrain from any action that would infringe the rights in the Bill of Rights.

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This includes the right to education — something that has been affirmed by the Constitutional Court.

In essence, the State is under an obligation not to interfere with, infringe upon or restrict the education rights of migrant, stateless and undocumented children.

Similarly, a desire to stifle future precedent on the right of migrants and undocumented learners to education would be futile. If this is the department’s intention, it is a stance that misunderstands the primary source of South Africa’s obligations to all persons within its territory – that source being the Constitution.

It was upon the fundamental values enshrined in the Constitution that South Africa acceded to the 1951 Convention, the 1967 Protocol and the OAU Convention. This means that the rights implicated in the white paper exist and are primarily enforceable through the Constitution before international law.

Courts may (and do) take into account international law when interpreting the Bill of Rights, but also rely directly on the Constitution itself. This is evident from the court’s decision in the Centre for Child Law matter which was based on a Constitutional Court judgment, the latter being a decision that was itself rooted primarily in the Constitution.

This is not to say that our Constitution renders our membership in the Convention and Protocol superfluous. Our membership is a signal to the international community that we remain committed to the fundamental human rights which define our democratic dispensation and also enhance our accountability by requiring South Africa’s compliance with the Convention and Protocol’s reporting mechanisms and international transparency.

Remaining a member of the Convention and Protocol is, therefore, an indication that we are capable of meeting the standards which we have set for ourselves as a nation.

Tactics ahead of elections

The white paper appears to suggest that South Africa does not have the resources to provide socio-economic rights to refugees, asylum seekers and other migrants. The implication is that asylum seekers are a drain on the fiscus.

However, the department has wholly failed to present evidence that the rights migrants hold have had any impact on government’s provision of socio-economic rights to South African people.

Evidence abounds, however, that migrants are frequently used for political capital — and often as scapegoats — by governments that fail to meet their service delivery obligations.

It would be regrettable for that perception to gain traction in South Africa.

It would also be in stark contrast to South Africa’s position in the international community as a champion of human rights.

As we continue to demonstrate our commitment to protecting and defending vulnerable and oppressed persons globally, this commitment must include the vulnerable persons who seek protection and refuge within our borders.

What does the white paper mean for South Africans?

Debate around the white paper reveals that it holds strong popular support.

Because it may be of little consequence to voters, given that it does not directly influence their rights, South Africans may not see what the white paper actually points to — a government that is able to disregard established human rights and attempts to circumvent rights developments by taking deliberately regressive actions.

This has no place in a constitutional democracy and is something every voter should be concerned about when casting their ballot. DM

Anjuli Maistry is a senior attorney at the Equal Education Law Centre. She has previously worked at Lawyers for Human Rights and the Centre for Child Law. Her interests include children’s rights, migration, climate justice and access to education.

Daniel Peter Al-Naddaf is currently a candidate attorney at the Equal Education Law Centre. His interests include child safeguarding and refugee law, and he previously worked at the International Federation of Red Cross and Crescent Societies.