Walterbiagio Lo Gerfo, MA Student, Università degli Studi di Milano
Europe is nowadays characterised by strong inequalities between EU citizens and migrants in relation to the entitlement to and enjoyment of fundamental rights. As a matter of fact, many immigrants and refugees living in the European continent find it difficult to fully enjoy their social and economic rights. Despite a sufficient human rights protection regime, many migrants struggle to socially integrate due to legal and bureaucratic barriers in various European countries.
Among refugees and migrants there is a particular category that is often neglected by social rights implementation plans and that often has to deal with the different barriers imposed by European societies: irregular migrants. An ‘irregular migrant’ or ‘migrant with irregular status’ is defined as a person who has entered a country without authorisation and/or overstayed in said country in contravention of national immigration policies. In contrast to labour migrants with special visas or refugees who have applied for asylum, these migrants usually arrive to a new country illegally and are therefore untraceable for the receiving country. However, the realities involving the irregular status are manifold: for example, it occurs when people who have entered legally (labour migrants or asylum seekers) decide to remain in the receiving country after their stay permit has expired. Irregularity may also occur when migrants lose their job or decide to escape from an unsafe and degrading work environment: in some countries, residence permits are only granted to those who are formally employed, leading to a state of irregularity for all migrants who lose their jobs.
Unfortunately, the irregular migration scenario also involves all irregular migrants’ children who have not acquired residence in the European country in which they were born and therefore inherit their parents’ irregularity. Although it is often assumed that irregular minors are the children of irregular migrants, and therefore undocumented individuals, the figure of the child with irregular status represents a paradigm that includes different realities. As a matter of fact, international legislation distinguishes between unaccompanied minors and those who are in the custody of a family member or guardian, but also between minors included in and protected by the Return Directive[1] and those who are not protected by said procedure. As Spencer[2] states, “undocumented children live at the intersection of conflicting policy agendas. On one hand, enforcement of immigration controls, and on the other, the protection of child welfare”. The author also points out the precarious balance of European policies on children with irregular status: indeed, through an unclear approach to this issue, several states establish an actual legal limbo between formal exclusion and informal inclusion from legal entitlements concerning basic social rights.
As with irregular adults, minors belonging to this group are difficult to quantify: the scarcity of reliable data on this phenomenon strongly affects also the protection of children with irregular status. As a matter of fact, children often acquire irregular status at birth and thus lose most of their rights along with their parents. This is strongly linked to the right to birth registration, which is sometimes denied to children born to irregular migrants: many international bodies have urged states to ensure that all migrant children are registered regardless of their parents’ legal status.[3] This is crucial for the healthy growth of the irregular child, who is thus entitled to access to healthcare and education.[4]
Irregular children’s social rights: the right to education
In general, an extension of the access to basic social rights for migrants with irregular status has taken place on European territory. Many Member states, thanks to institutional recommendations but also to local initiatives, have indeed managed to extend the scope of social rights for this category, especially in the area of healthcare and education. However, despite the progress made, the European territory is still highly polarised in the provision of these rights, given the different national legal approaches. Children, who have greater access to basic rights than their parents and other irregular adults, are nevertheless confronted with legal and bureaucratic barriers set up at national level.
The right to education has undergone changes in terms of its interpretation through international legal instruments. The Convention against Discrimination in Education[5] (UNESCO) states that “no discrimination in the admission of pupils to educational institutions” shall exist and that States parties are to “give foreign nationals resident within their territory the same access to education as that given to their own nationals”. As a matter of fact, migrant children have access to schools in many EU countries nowadays. However, the right to education for irregular migrants results only from the interpretation of various conventions as it is often implicit or neglected in the national law of individual countries. An unofficial access to the right to education can result in the reinforcement of administrative barriers that can have grave implications for these individuals, including social marginalisation, lack of access to higher education and unemployment.
The right to education for irregular children in Europe
In Europe, the approach to the right to education varies between countries. In 23 of the 28[6] EU countries, children with irregular status have access to education, although in different ways. In general, the right to education refers to compulsory and free-of-charge education, i.e. primary and secondary school.[7] However, due to national measures or alternative policies at the regional level, some countries have extended the right to education for irregular children also to preschool and professional education.[8]
In order to grant the right to education to irregular minors, each Member state develops focused strategies in compliance with its legislative framework and irregular migration policies in force. For example, in ten[9] of these countries, irregular migrants have access to schools explicitly, i.e. through measures derived not only from the constitution but also from legal instruments such as case law and ministerial decrees. In thirteen[10] other countries, children with irregular status have an implicit entitlement to access to education. This means that the possibility for these minors to participate in schooling is not directly contemplated in official documents but is the result of a series of measures, taken at federal or local level, to guarantee education even to the weakest and most disadvantaged categories.
Five EU countries, however, still erect barriers that do not allow access to schooling to some categories of minors. In Bulgaria, Finland, Hungary, Latvia and Lithuania, where education for minors is compulsory, governments erect bureaucratic and legal barriers that result in the exclusion of irregular migrants. In these countries, registration in municipal registers, residence permits and other documentation that is not accessible to these migrants are required at the time of enrolment.
The explicit right to education in Italy
Art. 34 of the Italian Constitution lays down that “school is open to all”. As a matter of fact, the Italian state allows immigrant children to participate in school education on an equal footing with citizens[11]: this is also possible for irregular children. Compulsory education in Italy lasts for a period of 10 years[12] for all children aged 6 to 16. In addition, through various circulars, the Council of State has ruled that if a child comes of age before completing five years of secondary school, they are still entitled to complete their education. In decision No. 1734/2007[13], it was made explicit that, since secondary education is usually completed when the pupil reaches the age of majority, it would be unconstitutional to prevent the pursuance of studies, participation in the esame di maturità and the award of a diploma simply because the student has turned 18.
As stated in the abovementioned art. 45 par. 1 of Presidential Decree no. 394, irregular minors are therefore entitled to take part in education regardless of their status and are not required to present residence permits in compliance with art. 6 par. 2 of legislative decree no. 286/1998. When enrolling in Italian schools, the family provides only the child’s personal data and their fiscal code. Furthermore, the Ministry of Education has found alternative methods of enrolment for minors without a fiscal code: Circular no. 28/2014 allows parents of irregular minors to enrol their children in school through an online system that does not require a social security number and that generates a temporary code to complete the enrolment. The Ministry has also confirmed through the Guidelines for the reception and integration of foreign studentsthat school authorities are not obliged to report the irregular status of minors attending their institution because they are exercising a right recognised by national law.[14]
In Italy, regional authorities play a fundamental role in influencing national legislation and, above all, in the protection of migrants’ rights. According to art. 117 of the Italian Constitution, whose content is also reiterated in art. 1 par. 4 of Legislative Decree 286, the regions and the State share responsibility for certain services, which are managed in a concurrent manner. As a result, regions have contributed considerably in providing access for irregular minors to non-compulsory education services such as nursery school and kindergartens. On the other hand, provincial and city authorities do not have legislative power but can still contribute at an administrative level in the provision of these services.
Pre-school education
Although the right to education for irregular migrants is explicitly guaranteed in Italy, there have been ambiguities regarding the entitlement of these individuals to pre-school and therefore non-compulsory education. Until recent times, access to kindergartens and nursery schools was indeed denied to minors with irregular status. This issue was brought to public attention in 2007, when the City Council of Milan prevented children of irregular immigrants from accessing kindergarten because they did not hold a residence permit. Giuseppe Fioroni, the then Minister of Education, responded by saying that this choice violated the human rights of these individuals and undermined their dignity. In addition, the Court of Milan reminded that irregular minors could not be considered to be staying illegally in national territory[15] and should therefore be guaranteed access to these services. The Municipality of Milan has therefore made progress in this regard and, since 2012, irregular minors have had access to pre-school services under the same conditions as citizens.
Access to non-compulsory education services has been at the centre of the Italian debate and several local authorities have taken targeted measures. For example, in the cities of Turin, Genoa and Florence, access to pre-school was extended to irregular minors.[16] Conversely, the City of Bologna had initially denied irregular minors access to kindergarten. The Minister of the Interior[17] had responded to this decision by pointing out that both national and regional regulations in Emilia-Romagna considered it unnecessary to show a residence certificate to access these services.
At the regional level, there have been many positive responses to the issue of access to pre-school services for children with irregular status: for example, the region of Liguria has issued a regional decree providing that “Minors who are foreign nationals staying in the region have equal access to childcare and school services as Italian nationals.”[18] Similar responses were adopted by the regions of Marche[19] and Emilia-Romagna.[20] Yet the measures taken by regional and local authorities have not contributed to a revision of the national legislation, which is urgently recommended to prevent any misinterpretation resulting in the exclusion of this vulnerable category.
Implicit entitlement to school education in Germany
For many years, migrants with irregular status in Germany have had to deal with several barriers that prevented them from benefitting from social rights. German immigration policies, which are based on the Residence Act, made it difficult for irregular minors to gain access to education because of the obligation to present a residence permit. At the beginning of the new millennium, the right of children of undocumented foreigners to attend school was the subject of a profound debate. Leveraging the fact that Germany had ratified all important human rights treaties[21], many NGOs and civil society actors at the federal level advocated for the implementation of basic social rights.[22] Political parties such as Die Linke and the Green Party also addressed the issue by calling for a repeal of Article 87(2) of the Residence Act, which placed an obligation on public institutions to report the presence of individuals residing illegally on the territory. In 2011, after the issue had become central in the media and among the public, the revision of Article 87 was enacted. Although the obligation for public institutions to report irregular migrants remains, hospital and school employees are now exempted from it. This decision contributed greatly to the extension, albeit minimal, of the right to education to children with irregular status. The right to education for irregular migrants is not explicitly stated in German law; however, the abolition of the duty to report in educational institutions makes access to this social right implicit for this category.
Entitlement to education within German Federal states
A strong contribution to the gradual access to education for undocumented migrants is also due to the efforts of some Federal states in Germany. Within the German political context, regions (or Länder) play a key role as many laws passed at federal level may influence national law.[23] The concurrent decision-making power of State and regions guarantees autonomy at federal level in certain fields, including education.[24] Measures on education are mentioned in the constitutions and school laws of each Land: as a result, the sixteen German Federal states differ in their implementation of the right to education for irregular minors.
Compulsory schooling is only made explicit by six federal states. In addition, Bremen and Schleswig-Holstein have extended compulsory schooling to undocumented minors because they have interpreted the concept of ‘domicile’ (Wohnsitz) as the place where a person lives and sleeps regularly and which has nothing to do with the person’s illegal status.[25] In the states of Baden-Württemberg, Berlin, Brandenburg, Hesse and Thuringia, irregular minors are not subject to compulsory schooling because the authorities require a residence permit or a Duldung, i.e. a ‘tolerance’ status that is issued to the person who is to be removed but for whom removal has been postponed.[26] The remaining states have not extended compulsory schooling to irregular minors because their constitutions have interpreted the concept of ‘residence’ (gewöhnlicher Aufenthalt) so as to exclude irregulars, who, being subject to possible deportation, do not have a habitual and stable place of residence.
In most German Federal states, there is an explicit reference to the access of irregular children to schools. In five of the states, however, there is no explicit reference to minors without residence: for example, in the constitution of the region of Bremen and Lower Saxony, the right of all to education is enshrined, which means that this right can also be extended to undocumented migrants in compliance with federal regulations. In Bavaria, Rhineland-Palatinate and Schleswig-Holstein, where there is no specific reference to the entitlement to education for undocumented children, access to school for this category is therefore deduced either from the regional constitution or from international law.
North Rhine-Westphalia is one of the states in which regional law guarantees access to education also for minors with irregular status: as a matter of fact, in 2007 a new law[27] was passed that made it compulsory for anyone residing or living in the regional territory to attend school. In addition, the regional Ministry of Education had considered the clause on reporting irregularities [Article 87(1), before it was repealed] to be contrary to the regional Constitution. In fact, reporting the data of irregular migrants would have been contrary to the regional ordinance on data protection of pupils and their family[28], which did not provide for the recording of a pupil’s residence status. Therefore, the Westphalian Ministry of Education stated that educational institutions did not have to ask for students’ residence data[29], thus establishing one of the first firewalls erected by German Federal states. This decision paved the way for the annulment of Article 87 of the national Residence Act in 2011.Another example of regional ‘avant-garde’ is Hesse, which regulates school admission for migrants in the “Decree on school attendance of pupils of non-German mother tongue”. When this decree was passed in 2008, it stipulated that a residence permit was required for access to school services.[30] After several complains, which tended to underline that this choice was inconsistent with the adherence to the international regime for the protection of human rights, the Hesse region published in the Official Journal[31] a revision of the ordinance abolishing the obligation to present a residence certificate, thus implicitly making it possible for irregular children to attend school.
Although German immigration policies are very hostile and often preclude access to social rights for undocumented migrants, Germany’s state structure has enabled changes in the system for implementing the right to education for undocumented children. The autonomy of the Federal states and an interpretation of regional school laws based on the international human rights regime have resulted in the establishment of inclusive policies in various federal settings. These initiatives at the sub-national level have led to several changes at the national level and give grounds to hope that national laws may adopt these local measures to extend the right to education to irregular children as well.
Restricted right to education for irregular children in Hungary
In 2015, the Hungarian government declared a national crisis due to the huge migration flows, most of which occurred illegally by crossing national borders. The state has thus taken measures to counter this phenomenon, which is mightily hindered by the populist propaganda of the Hungarian government. Illegal entry, which since 2012 had been considered an administrative crime, was made a criminal offence[32] with the new immigration policy measures. In addition, Hungary has tightened border controls and built barriers to stop entry from neighbouring countries, resulting in hundreds of asylum seekers and irregular migrants being expelled, often by force. In the European Commission v. Hungaryjudgment[33], the CJEU alleged and then confirmed that the Hungarian state had not complied with EU law, specifically the Return Directive, by rejecting irregular migrants without issuing a return notice and by failing to comply with migrants’ protection provisions.
No entitlement to education for irregular migrants
Hungary is one of the five EU countries that does not entitle irregular migrants to compulsory education. Article 70(F) of the Hungarian Constitution enshrines the right to education for all citizens, while the Public Education Act of 2011 regulates the right to access to school. This Act sets out the measures taken to ensure that foreign children receive compulsory education and all the benefits of completing their schooling. However, Article 92 states that access to education is guaranteed to foreigners who have applied for asylum, to refugees and to minors with a humanitarian residence permit[34]: irregular immigrants are therefore not included as beneficiaries of access to education as they do not have the required residence permit.[35] In addition, the Hungarian law strengthens the entry barriers for irregular migrants by including a clause[36] that provides for access even to those without a residence permit under the condition that they pay the school fees. This further discourages irregular families, who cannot afford to pay school fees for their children’s education. On the other hand, the second part of the clause stipulates that the payment of fees must be administered by the school management, which may also decide to waive the obligation to pay at enrolment. The role of the school governance in countries such as Hungary is crucial as some institutions may ignore state laws and allow irregular children to enrol: some NGOs report that some institutions do not request a residence permit and accept irregular children on an equal footing with regular residents.[37]
A further barrier for irregular and undocumented children to enter school is the requirement of identification documents in order to receive state funds. As Juli Gazso points out, state funds are disbursed according to the number of children enrolled in the institution, so institutions that take on irregular children often do not receive funding, resulting in a general reluctance to accept undocumented students.[38]
Conclusion
The extension of the right to education to every child is one of the most important prerogatives of international bodies dealing with the respect of human and social rights. Further attention is paid to undocumented migrants, who live in already precarious conditions and hence need equal access to these rights, specifically the right to education that can enable them to find employment and lead a dignified life.
It is evident that the European scenario regarding the entitlement of irregular children to education is manifold and, despite the progress of several EU countries, national realities in which the right to education for irregular migrants is violated still exist. A supranational call for urgent implementation of the appropriate measures in compliance with the international legislative framework is therefore necessary. A fundamental step would be to make explicit in Member States’ national laws the access to school for irregular minors on an equal footing with nationals. Each country should indeed guarantee all residents on its territory the right to compulsory schooling and pre-school education regardless of their migration status. Moreover, where legislative bureaucracy tends to delay the implementation of these necessary measures, it is vital to erect firewalls to safeguard the personal data of irregular migrants, who are often targeted by immigration authorities and risk deportation. Service providers must always guarantee access to basic services to irregular migrants, while trying not to compromise their safety by pandering to restrictive national immigration policies.
Finally, the most incisive solution to improve the situation of irregular minors and their families is to raise awareness about their precarious conditions not only among social workers and providers but also within the entire population, in order to recognise the urgency of resolving the inequality in access to and enjoyment of human and social rights.
[1] Directive 2008/115/EC of the European Parliament and of the Council, Return Directive, art. 14(c).
[2] Spencer, S., Postcode lottery for Europe’s undocumented children: Unravelling an uneven geography of entitlements in the European Union, American Behavioral Scientist 60.13 (2016): 1613-1628, p. 1615.
[3] The CRC in art. 7(1) stated that each child “shall be registered immediately after birth” and has the right to have a name and a nationality in compliance with the receiving state’s legislation.
[4] According to the OHCHR, some countries allow access to education without a birth certificate but prevent the pupil from receiving academic qualifications, thus making it difficult for them to pursue their school-path. Moreover, several pupils do not have access to benefits like free school material and scholarships due to their lack of a birth certificate [UN doc A/HRC/27/22 (2014)].
[5] Art. 3. This convention was ratified or accepted by all EU members with exception of Austria, Belgium, Estonia, Greece, Ireland and Lithuania.
[6] This analysis is based on Spencer-Hughes (2015) and therefore includes the United Kingdom among the EU28, since Brexit formally took place in 2017.
[7] In most EU countries, education is compulsory from age 6 to 16/18. Thus, compulsory education in countries such as Italy, Spain and France also includes secondary education.
[8] This is the case of Portugal [Law 23/07, Article 122(1)(b)].
[9] Belgium, Croatia, Czech Republic, France, Greece, Italy, Netherlands, Romania, Spain, Sweden.
[10] Austria, Cyprus, Denmark, Estonia, Germany, Ireland, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia, UK.
[11] Legislative decree no. 286/1998, art. 38, par. 1; D.P.R. no. 394/1998, art. 45, par. 1.
[12] Leg. dec. no. 76/2005, art. 1 par. 3.
[13] Italian Council of State, decision no. 1734/2007.
[14] Linee guida per l’accoglienza e l’integrazione degli alunni stranieri (MIUR, 2014):
[15] Leg. dec. no. 286/1998, art. 19, par. 2, letter a). In addition, since they cannot be expelled, minors are entitled to a residence permit valid until they reach the age of 18 as provided for by article 28, par. 1, letter a) of D.P.R. no. 394/1999.
[16] Crépeau F. and Hastie B. (2015), p. 178.
[17] Ministry of the Interior, response no. 2589 of 13th April 2010.
[18] Liguria, Regional law no. 7/2007, art. 20 par. 1.
[19] Marche, Regional law no. 13/2009, art. 10 par. 2.
[20] Emilia-Romagna, Regional law no. 5/2004, art. 14, par. 1.
[21] In 2010, Germany fully ratified the CRC, which it had previously ratified with reservations. However, Germany did not ratify the Revised ESC.
[22] Laubenthal B., The negotiation of irregular migrants’ right to education in Germany: a challenge to the nation-state, Ethnic and Racial Studies 34.8 (2011): 1357-1373, p. 1363.
[23] This is due to their legislative veto right in Bundesrat. [Laubenthal (2011), p. 1365)].
[24] German Basic Law, art. 70 and following.
[25] Kößler M., Mohr T., Fodor R., Peters E., Habbe H., von Manteuffel M., Aufenthaltsrechtliche Illegalität. Beratungshandbuch 2017, Deutscher Caritasverband e.V., Deutsches Rotes Kreuz e.V. (2017), p. 15. The data shown in both maps was extrapolated from this report (p. 21).
[26] The tolerance permit is not a residence permit and, therefore, the person is not resident in the territory.
[27] School Law of NRW art. 34 par. 1.
[28] Data Protection Ordinance on data of pupils and parents, NRW, VO DV I 06/2007.
[29] Decree of the Ministry of Education of NRW, 03/2008
[30] Hessian Official Journal 9/2008, decree no. 272 8/2008, art. 4, par. 2
[31] Hessian Official Journal 12/2009, reformed version of decree no. 272 8/2008, art. 1, par. 2.
[32] There were consequent amendments of the Asylum Law LXXX/2007, Act C/2012 on the Criminal Code and Act XIX/1998 on Criminal Procedure.
[33] European Commission v. Hungary (C-808/18):
[34] CXC Public Education Act (2011), Section 92(1).
[35] The only exception relates to children who fall within the scope of the Return Directive in art. 14(c): if the child is subject to delayed removal, they are entitled to school education for the length of their stay in the territory.
[36] CXC Public Education Act (2011), Section 92(7).
[37] FRA report (2011), p. 92.
[38] PICUM (2008), p. 23.