Questions arise as to whether the South African government has a responsibility to educate refugees and asylum seekers, whether they should have access to higher education and, if they can, whether they can do so on their own or with state support.
Currently, at tertiary institutions, refugees and asylum seekers struggle to access bursaries, scholarships and loans designed to help financially needy students. The challenge of accessing these funds mainly rests on classifying refugee students as “international students”. As we mark World Refugee Day on 20 June, the issue deserves a closer look.
Classification as international students derives from international refugee law, specifically the 1951 Convention Relating to the Status of Refugees (the 1951 Refugee Convention). This convention provides that state parties are obliged to accord refugees favourable treatment with respect to tertiary education, and in particular as regards access to studies, awarding of scholarships and the remission of fees and charges. This provision therefore creates the standard of treatment against which national governments’ treatment of refugees and asylum seekers must be measured or assessed.
Unfortunately, this international standard suffers from two shortcomings: first, it appears to restrict the right to tertiary education to refugees, to the exclusion of asylum seekers. Second, it affords refugees the same or equal treatment accorded to international students.
When it comes to higher education, equal treatment inhibits the differentiated and special support that should be given to refugees and asylum seekers.
The right to education is contained in the Bill of Rights and everyone in South Africa is implicitly entitled to further his or her education. Yet, refugees and asylum seekers enjoy special protection as regards access to tertiary education under the Refugees Act of 1998.
Still, the Constitution mandates legal fraternities to consider international standards and practices when interpreting or giving meaning to the Bill of Rights. The same guidance is peremptory in terms of section 1A of the Refugees Act, which states that refugee rights must be understood and applied in a manner that is consistent with the 1951 Refugee Convention and other international instruments to which South Africa is or becomes a party.
As noted, the same treatment as international students at higher education institutions disadvantages refugees and asylum seekers who have insufficient means to pursue education and training. It also deprives them of and excludes them from opportunities to apply for scholarships or to have their fees reduced.
Exclusion emanates from immigration conditions whereby study visas shall be granted to international students only if they have sufficient financial means to cover their educational, medical and living expenses for the full duration of study.
On the contrary, foreigners seeking asylum in South Africa are not subject to the self-sufficiency rule; rather, they are admitted in the country on humanitarian grounds. Accordingly, refugees and asylum seekers must be protected physically, socially and economically. They must be assisted to regain hope, restore normalcy to their lives and to attain a better standard of living. This can be achieved through, among others, access to shelter, socioeconomic assistance, education and training, employment and business opportunities. To compete with others in the labour market, education and training are crucial.
The South African government recognised this need when it adopted the principle of full legal protection in terms of section 27(b) of the Refugees Act with regard to those rights in the Bill of Rights that the Constitution vests in everyone. While the principle of full legal protection was restricted to refugees, the Supreme Court of Appeal, in the case of Minister of Home Affairs v Watchenuka, opined that asylum seekers should not be deprived of the freedom to receive educational opportunities.
Because the Refugees Act was enacted to improve the plight of refugees and asylum seekers, they should not be treated as international students, but as refugee students in order to accord them differentiated treatment that speaks to their plight. International students left their home countries to study abroad.
The need for differentiated treatment should be understood in terms of the notion of the overall object of the 1951 Refugee Convention which requires a host state to accord to refugees “special protection” or “favourable treatment” that responds – effectively and sufficiently – to their special needs.
It follows that the Department of Higher Education and Training, tertiary institutions and education funders should consider that education and training of formally recognised (or de jure) refugees is also subject to constitutional conditions of available resources and the progressive realisation of those socioeconomic rights enshrined in the Bill of Rights. Put succinctly, stakeholders in education must allocate funds that will assist needy and deserving refugee students to further their tertiary education and training. Furthermore, asylum seekers (ie de facto refugees) must be allowed to have access to funding schemes if they can prove an unreasonable delay in the approval of their applications for refugee status.
The inclusion of refugees and asylum seekers in funding schemes can further be justified through Article 26 of the 1948 Universal Declaration of Human Rights and Article 13 of the 1966 International Covenant on Economic, Social and Cultural Rights. Whereas Article 13 requires the state to make education available and accessible to all, Article 26 obligates the state to direct education to the full development of the human personality, potentials or capacities and to widen people’s freedoms so as to enjoy human rights.
As far as refugees and asylum seekers are concerned, it’s important to make a clear distinction between refugee students and international students to ensure their freedoms are widened in the education sector so that they can pursue the careers of their choice.
Unfortunately, the South African government does not make funding available to refugee students. One could argue that this is, in part, because scholarships, bursaries and loans are aligned to the ANC’s strategies, programmes and policies to redress past socioeconomic injustices suffered by the historically disadvantaged and marginalised majority.
In 1997, the government adopted the Education White Paper to transform the education system. As regards funding for needy and deserving South African students, the White Paper introduced the National Student Financial Aid Scheme and the National Skills Fund. Sadly, this approach excludes refugees and asylum seekers from state-funded financial programmes aimed at developing potential, skill and talent.
In light of the above, key stakeholders in education should consider making funds available to refugees and asylum seekers who want to study and pursue their dreams. Given their hardships, they should be given special treatment as refugee students as per refugee law, and not equal treatment as international students, as per immigration law. DM