FACULTY OF LAWLund University

Frida Ericmats Rutgersson

Education for All - Including Undocumented Children?

-The Impact of the UN Convention on the Rights of

the Child on Swedish Law and Practice andWays Forward

JAMM04 Master Thesis

International Human Rights Law30 higher education credits

Supervisor: Anna BruceTerm: Autumn 2015

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ContentsSummary 4Preface 61 Introduction 8

1.1 Background 8

1.2 Definitions 11

1.3 Purpose and Research Question 12

1.4 Disposition 13

1.5 Materials and Methodolgy 13

1.6 Delimitations 152 The Right to Education for Undocumented Children according to the Convention on the Rights of the Child (CRC) 18

2.1 General Information about the CRC and its Monitoring System 18

2.1.1 Introduction to the CRC 18

2.1.2 The Committee on the Rights of the Child 19

2.2 Do Undocumented Children Have Human Rights? 21

2.3 Articles 28 and 29 in the CRC 22

2.4 The Four Principles of the CRC 27

2.4.1 Non-discrimination (Article 2) 28

2.4.2 The Best Interest of the Child (Article 3(1)) 29

2.4.3 The Right to Life, Survival and Development (Article 6) 31

2.4.4 Respect for the Views of the Child (Article 12) 33

2.5 State Obligations according to the CRC 34

2.5.1 Implementation of the CRC 34

2.5.2 The 4-A Scheme 37

2.5.2.1 Availability (Article 28 (1)(a)(b)) 38

2.5.2.2 Accessibility (Article 28 (1)(b)) 39

2.5.2.3 Acceptability (Article 29 (1)) 40

2.5.2.4 Adaptability (Article 29 (2)) 41

2.6 Education for All 423 The Right to Education in Sweden for Undocumented Children 44

3.1 Sweden’s ratification of the CRC and its Legal Position in Swedish Law 44

3.2 The Swedish Education Act Effects for Right to Education for Undocumented Children 48

3.2.1 The Swedish School Authorities Responsibility for the realization of Undocumented Children’s Right to Education in Practice 51

3.2.1.1 The Swedish National Agency for Education 52

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3.2.1.2 The Swedish School Inspectorate 54

3.2.1.3 The Swedish Municipalities 58

3.3 The Swedish Police Impact on Undocumented Children’s Right to Education in Practice 60

3.4 The Four Principles of the CRC and the Right to Education for Undocumented Children 63

3.4.1 Non-discrimination (Article 2) 64

3.4.2 The Best Interest of the Child (Article 3 (1)) 66

3.4.3 The Right to Life, Survival and Development (Article 6) 67

3.4.4 The Respect of the Views of the Child (Article 12) 67

3.5 The A-4 Scheme and the Right to Education for Undocumented children 68

3.5.1 Availability and Accessibility 68

3.5.2 Acceptability and Adaptability 704 Obstacles and solutions 72

4.1 Education for All in Practice 72

4.2 The CRC as Swedish Law 73

4.3 Change the Police Legislation 74

4.4 Strengthen the Right to Information for Undocumented Children 77

4.5 Support on Distance in the Child’s Mother Tongue 78Bibliography 81

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SummaryEducation for all, what does it mean? For me, that all children have the right

to education and are given possibilities to obtain this right. Though, is that

the reality for all children in practice? Several reports, national as well as

international, indicate that this is not the case for undocumented children in

Sweden, despite their right to actual enjoyment of the rights protected in the

Convention of the Right of the Child.

The Convention provides detailed guidance as to how the right is to be

enjoyed. Sweden have through an amendment in the Education Act given

undocumented children a legal right to education. However, it is not enough

to adhere to the rights on paper if this is not given effect in practice.

The aim of this thesis is to clarify what the obstacles are for these children

to obtain their right to education in Sweden. I have identified several

obstacles that have to be overcome in order to achieve and improve

availability, accessibility, acceptability and adaptability in education. In

addition to not providing access to individual fundamental rights of the UN

Convention on the Rights of the Child, the right to education will continue

to be limited for this group of children in Sweden.

I have evaluated the actions taken by Swedish authorities in order to give

undocumented children right to education. The conclusion that can be drawn

is that the obstacles are severe and that these children’s enjoyment of the

right is dismal. Sweden’s legislative and administrative measures for

implementation of the right to education in the Convention on the Rights of

the Child have not given effect. Undocumented children do not enjoy the

right in practice, despite their de facto legal right in the Education Act.

However, children’s rights cannot only be rights on paper; they have to

consist of actual enjoyment.

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In the final chapter of my thesis I have four recommendations on how the

Government and Riksdag need to act in order to fulfil its obligations of the

Convention and achieve a positive outcome concerning the right to

education for undocumented children. The recommendations are:

- Make the Convention on the Rights of the Child into Swedish law.

- Change the police legislation and prohibit the police to collect or

search for undocumented children in or in direct adherence to

school.

- Strengthen the Right to Information concerning undocumented

children’s right to education.

- Facilitate support on distance in the child’s mother tongue.

The above recommendations will fulfill the obligations under the

Convention and realize undocumented children’s right to education. This

will include them in the concept education for all.

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PrefaceWhen I started the Master Programme in Human Rights Law at Raoul

Wallenberg Institute in Lund August 2003 I had just finished my Master

Programme of Laws (LLM) at Faculty of Law at Lund University with an

environmental specialization. I had in mind to receive more knowledge in

human rights environmental law due to the fact that environmental crimes

often are cross-boundary problem.

During 2004 I meet Prof. Katarina Tomasevski, UN Special Rapporteur on

the Right to Education for the United Nations Human Rights Commission,

and at that time Lecturer on the Master Programme in Human Rights Law.

During her lectures she captured my focus and I realized that my interest

had switch to the Rights of the Child and especially Children’s Right to

Education.

I was pleased when I realized that I had been given Prof. Katarina

Tomasevski as my supervisor when writing my Master Thesis in Human

Rights Law. My thesis topic was the Right to Education for Undocumented

Children in Sweden. At that time this group of children did not have the

right to education in Sweden. During the spring 2005 I got employed by the

Swedish School Agency for Education and I got the chance to work for

children’s right to education. Unfortunately I never finished my master

thesis. Now, ten years later, it is time to finish what I started with Prof.

Katarina Tomasevski.

Prof. Katarina Tomasevski passed away in 2006 but her contribution to the

human rights society is invaluable. Her words concerning the right to

education for undocumented children is important to honor more than ever

with the large group of asylum seeking persons coming to Sweden with the

resulting growing number of undocumented children.

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I would also like to give my warm appreciation to my new supervisor, Post

doctorate Anna Bruce, for her support and valuable contribution to my

thesis but also believing in me – finishing my thesis long overdue but more

relevant than ever in the world we live in. All children, including

undocumented ones, have the right to education.

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1 Introduction

1.1 BackgroundThe latest estimation concerning the number of undocumented children was

done in 2008. The total number of children living in Sweden was estimated

to be between 2 000 – 3 000.1 Only 450 of these had access to education.2

Four out of five undocumented children did not have access to education.

No inquiries have been conducted as to how many undocumented children

there are living in Sweden today, 2015. In 2014, after an inspection of 30

Swedish municipalities3 made by the Swedish School Inspectorate, only 25

undocumented children were known by the municipalities. With migration

on the rise, that figure cannot correlate with the reality we live in. Both

these numbers indicate that the number of undocumented children who

enjoy the right to education in Sweden is unacceptably low and point to the

issue of reaching out to these children as a great concern.

According to the Committee on the Rights of the Child, education is an

indispensable tool for “every child.”4 By indispensable tool the Committee

means that education is important for every child when trying to achieve its

way in today’s world. Sweden ratified the UN Convention on the Rights of

1 Save the Children (2008), Barn utan papper - Jag vill bara landa, pages 17-18. 80 percent of the undocumented children have previously been asylum seekers in Sweden (The National Board on Health and Welfare Social Rapport 2010, page 280). While it is estimated that there are between 1.6 and 3.8 million irregular migrants in the European Union, there are no reliable EU-wide estimates of the percentage which are children, due to issues of reliability, comparability and accuracy (UN Committee on the Rights of the Child

General Discussion Undocumented Children: Barriers to Accessing Social Rights in Europe, page 1). Eurostat figures show that 10% of people appreciated for being irregularly present on the territory of the 28 EU member states in 2013 were aged 17 years old or younger (5% between 14 and 17 years and 5% younger than 14 years), PICUM (2015), Protecting Undocumented Children: Promising Policies and Practices from Governments, page 7.2 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillsyn (dnr 401-2014:2380), page 34.3 The 30 municipalities had been selected due to the fact that they had the highest number of asylum seeking children in Sweden, The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillsyn (dnr 401-2014:2380), page 4.4 CRC General Comment No. 1, Article 29 (1): The aims of education, para. 3.

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the Child in 1990. 5 The UN Committee on the Rights of the Child have

several times over the years recommended that Sweden change its

legislation to guarantee undocumented children their right to education.6

In July 2013 all undocumented children in Sweden were given the right to

education through the Education Act (2010:800). 7 Although the Education

Act was updated with a right to education for these affected children, the

number of persons that obtain that right does not seem to have increased.8

The Swedish Authorities’ have reported that it is hard to estimate the actual

number of undocumented children who have access to education. The

reason for this is that these children are in hiding. The inspections that

previously have been conducted by the Swedish municipalities confirm that

the access to education for this group of children have not increased since

this right was given through the Education Act in 2013.9

In 2013, before the new regulations came into force, the Swedish School

Inspectorate made an inspection of all municipalities in Sweden. Close to 40

percent of the municipalities did not find it necessary to make any

preparations concerning undocumented children’s right to education before

the new regulations, since the municipalities already gave undocumented

children access to education.10 This is a view I find hard to understand when

many reports clearly illustrate the fact that many undocumented children do

not attend school at all and that the municipalities do not know how many

undocumented children are living within their area. It is clear that

municipalities both lack awareness of the number of individuals to address

5 Sweden ratified the UN Convention on the Rights of the Child in July 1990. It applied with Swedish legislation in September 1990. Though, the Convention in its whole is not Swedish legislation. It must also be transformed to Swedish constitutional text.6 The UN Committee on the Rights of the Child, State report 2007 (para. 211-212), State report 2009 (para. 54-55) and State report 2011 (para. 327-328). 7 Chapter 29, para 2.5 Education Act (2010:800).8 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillsyn (dnr 401-2014:2380).9 Ibid.10 The Swedish School Inspectorate (2013), Asylsökande barns rätt till utbildning – Nationell sammanställning från flygande tillsyn (dnr 402-2013:2272), page 20.

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as well as lack in providing adequate measures to secure the right to

education for undocumented children.

The UN Committee on the Rights of the Child has welcomed the legislative

measures that Sweden has taken.11 Local non-governmental organisations

such as UNICEF Sweden emphasise actual enjoyment of the right in

practice rather than changing the legislation. Furthermore, UNICEF

recommends that the Government of Sweden ensure that undocumented

children are given access to education in practice.12 The Convention on the

Rights of the Child (the Convention) demands actual enjoyment of

education. The Convention emphasises that just making an amendment to

the Education Act is not enough. Education is an empowering tool for all

children. A common theme that the Committee repeats is that actual

enjoyment is the measurement of the implementation of the Convention

itself.13 Consequently, the State needs to complement the legislation with

other active measures.14 The lack of knowledge of the number of

undocumented children who today have actual access to education in

Sweden supports that additional active measures are required.

The State has the obligation to give all children access to education, which,

due to its importance for every child, includes undocumented children.

What hinders these children to get access is often practical barriers rather

than direct legal discrimination. Lack of education is a personal catastrophe

for each child who cannot practice his / her human rights, thus the practical

barriers need to be swiftly removed.15

Due to immigration flows in recent years it must be assumed that there are

much more undocumented children living in Sweden today than the earlier 11 Concluding Observations from 6 March 2015 (CRC/C/SWE/5).12 Alternative report from UNICEF Sweden re. the Swedish Government’s 5th report to the UN Committee on the Rights of the Child, page 3.13 CRC General Comment No. 5 (2005), General Measures of Implementation of the Convention on the Rights of the Child (articles 4, 42 and 44 para. 6).14 Ibid, para 1.15 One example of a practical barrier is the personal identity number that all legal residents of Sweden have. Undocumented migrants do not have such a number and therefore excluded from many social and economic rights.

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estimated 2 000 - 3 000. Approximately 80 percent of the undocumented

immigrants have been asylum seekers.16 Since 2008 the immigration to

Sweden has increased rapidly and the unrecorded number of undocumented

immigrants has probably increased in proportion. In October 2015 the

Migration Agency estimated that during year 2015 there would come

between 140 000 – 190 000 immigrants to Sweden. Of them 29 000 –

40 000 are unaccompanied refugee children. The number of asylum seekers

during year 2016 is estimated to 100 000 – 170 000 asylum seekers, and of

them 16 000 – 33 000 are to be unaccompanied refugee children. On

average 18 percent of the asylum seekers are children in school age (6-18

years old).

Children are vulnerable per se. Undocumented children are especially

vulnerable as they are often living in hiding.17 In order to empower

undocumented children through education, strong and effective

implementation of the legal framework as well as addressing the prevailing

Swedish attitudes and lack of awareness is required.18

1.2 Definitions There are several categories of undocumented children.19 It can be a child

that has:

1. Entered the country irregularly,

2. Overstayed or otherwise violated the conditions of their Visa,

3. Trafficked to the State,

16 http://www.migrationsverket.se/Om-Migrationsverket/Nyhetsarkiv/Nyhetsarkiv-2015/2015-10-22-Stor-osakerhet-i-prognosen---EUs-agerande-avgorande.htmlhttp://www.migrationsverket.se/Om-Migrationsverket/Nyhetsarkiv/Nyhetsarkiv-2015/2015-10-22-Stor-osakerhet-i-prognosen---EUs-agerande-avgorande.html.Visited on 15 January2016.17 Undocumented children are living in a situation where they are in a triple vulnerability as children, migrants and undocumented migrant (PICUM (2008), Undocumented Children in Europe – Invisable Victims of Immigration Restrictions, page 112). 18 Bbabha, Children Without a State, page 131.19 An undocumented child can also be a person with or without a nationality – de jure or legally stateless. The child can be stateless in the sense that despite having a nationality, they cannot turn to the state in which they live for protection or assistance – de facto stateless. Thirdly, there can also be a child that has a nationality but they cannot prove it, due to lack of documents or not being registered at birth – effectively stateless. Bhabha, Children Without a State, page xiii.

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4. Not been granted refugee status after making an asylum application,

but stayed in the country anyway, or

5. Joined legal resident family members but lacked an independent

right of residence themselves.20

In this thesis I use the word child for all children between 6-19 years old.21

In the Swedish legislation there is a difference between a child and a pupil.

In the Education Act a pupil is described as a person that attend education in

school.22

1.3 Purpose and Research Question The purpose of this thesis is twofold: Firstly, to determine whether there is a

failure in giving the right to education for undocumented children in

Sweden. Secondly, if there is such a failure, then to map the way forward in

order to strengthen undocumented children’s human rights. In order to

answer these questions I have the following research questions:

1. Do undocumented children have rights under the Convention of the

Rights of the Child?

2. What obligations does the said Convention require of States in

relation to the right to education for undocumented children?

3. To what extent does Sweden live up to the regulations in the said

Convention and when does it not?

4. What needs to be done to Swedish legislation and in practice to

provide adequate measures to secure the right to education for

undocumented children?

20 Bhabha, Children Without a State (2011), page 132.21 In Article 1 of the Convention on the Rights of the Child is stated that a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority attained earlier.22 Chapter 1 para. 3 Education Act (2010:800).

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1.4 DispositionChapter 2 presents children’s right to education according to the Convention

on the Rights of the Child.

Chapter 3 presents undocumented children’s right to education within the

Swedish legislation and practice and evaluates how it corresponds to the

Conventions on the Rights of the Child.

Chapter 4 presents proposals on how to increase the right to education in

Sweden for undocumented children.

1.5 Materials and Methodolgy

Do undocumented children have human rights? Article 31 in the Vienna

Convention on the Law of Treaties states that “a treaty shall be interpreted

in good faith in accordance with the ordinary meaning to be given to the

terms of the treaty in their context and in the light of its object and purpose”.

Many human rights treaties are often rather abstract and vague and the

Convention on the Rights of the Child is no exception to the rule.23 Article

31 of the Convention describes the general rule of interpretation and the

most fundamental principle when interpreting a treaty, is to interpret in

“good faith”.24 When interpreting a treaty, one is bound to act in a way that

honors the spirit as well as the wording in the treaty. The interpreter has to

pay attention to the treaty’s context, object and purpose as well as to its text.

Any interpretation that is incompatible with the context, object and purpose

of that treaty will not be regarded as an interpretation rendered in good

faith.25

23 Detrick, A Commentary on the United Nations Convention on the Rights of the Child (1999), page 7.24 Jardón, Interpretation of Jurisdictional Clauses in Human Rights Treaties, page 108.25 Nowak, Introduction to the International Human Rights Regime (2002), pages 64-65.

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According to article 32 of the Vienna Convention on the Law of Treaties

preparatory work of the treaty is of use when interpreting international

conventions. This is to exclude interpretations that leave meanings

ambiguous or obscure, or which leads to a result that is manifestly absurd or

unreasonable.26 I therefore used the articles 31 and 32 in the Vienna

Convention on the Law of treaties as a legal research method to analyse and

interpret the Convention on the Rights of the Child.

In addition to consulting the sources described above, I have also used the

Committee on the Rights of the Child’s General Comments and Concluding

Observations. These do not constitute precedent. They are not binding rules

but guidance to the member states.

When it comes to Swedish legislation, I have studied the preparatory works.

In order to access Swedish practice, I have also gone through several reports

from Platform for International Cooperation on Undocumented Immigrants

(PICUM), the Swedish School Inspectorate, the Swedish Education Agency,

the Swedish National Board on Health and Welfare, Stockholm City

Mission, Save the Children and UNICEF. In relation to the research

questions, I have used relevant doctrine as a contrast background. The thesis

is mainly based on a legal comparative method, were Swedish law and

practice is evaluated against the standards of the Convention on the Rights

of the Child.

When analyzing if Sweden’s legislation and practice give the right to

education for undocumented children according to the articles 28 and 29 of

the Convention, I have studied the four fundamental principles of the

Convention. These principles (non-discrimination, best interest of the child,

right to life, survival and development and respect for the views of the

child) are essential for all other rights of the Convention and if the principles

26 Ibid, page 65.

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are not respected, other rights, including the right to education, will not be

possible to obtain in its fullest potential.27

Another method that I have used, which is overlapping the four principles,

is the A-4 scheme. This method focus on the State obligations if there is

availability, accessibility, acceptability and adaptability to undocumented

children’s right to education.28 All four A’s must be achieved by the State in

order to protect the right to education. If the State fulfills its State

obligations according to the rights of the Convention on the Rights of the

Child, Sweden are in accordance with the Convention, otherwise there will

be violations of the child’s rights. I have used both these two methods

because they give a better picture of the requirements for obtaining the right

to education.

Besides the above-described methods, I also have used my ten years’ work

experience29 with educational law in Sweden. I have during my work as a

lawyer encountered persons working with undocumented children and

through this I have been made aware that there are obstacles for

undocumented children in getting access to education.

1.6 DelimitationsThis thesis will analyse whether undocumented children’s right to education

in Sweden is protected by Swedish law and in practice. Even though studies

have shown that secondary education is an even bigger problem for

undocumented children than primary education30, this thesis is limited to

undocumented children’s right to primary education.

27 Rishmawi, A Commentary on the United Nations Convention on the Rights of the Child, Article 4 The Nature of States Parties’ Obligations (2006), page 22. CRC General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44, para. 6), para. 12. 28 Tomasevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), page 13.29 During my ten years as a lawyer I have worked for the Swedish National Agency for Education, the Swedish School Inspectorate and the Child and School Student Representative.30 PICUM (2013), Human Rights of Undocumented Adolescents and Youth, page 40.

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The thesis does not contain information regarding the work by the following

school authorities; the Child and Student School Representative (BEO) and

the National Agency for Special Needs Education and Schools. The BEO is

a part of the Swedish Schools Inspectorate, though it also functions

independently. Together with the Swedish Schools Inspectorate, BEO has

supervision over the section of the Education Act, which deals with

degrading treatment.31 Unfortunately, reports and investigations32 have

shown that children with foreign origin are more often exposed to degrading

treatment in school, but this thesis does not include that aspect. Even the

Committee on the Rights of the Child has underlined the problematic

bullying situation for children with foreign origin.33

In Sweden municipalities, county council and private actors can be the

organizers of education34, though this thesis focuses on the work of the

municipalities.

In the concept of undocumented children, I do not include immigrants from

the European Union.

Lastly, I wanted to also include undocumented children’s right to preschool

and leisure-time centres in the thesis topic. It is important that Sweden

should not exclude the most vulnerable children early in their lives nor

exclude school children from the right to enjoy the time and development

after school in leisure-time centres. It is most likely that undocumented

children are the ones who most need the time at the leisure-time centre.

Unfortunately, I have to limit the research questions, but that does not make

31 Förordning (2011:556) om instruktion för Statens skolinspektion, para. 12-13, Chapter 6 Education Act (2010:800).32 The Swedish School Inspectorate, Kunskapsöversikt för kvalitetsgranskning av elevhälsans arbete (dnr 2014:2123), pages 7-8. 33 The Committee on the Rights of the Child welcoming the numerous measures taken to combat bullying at school by the Child and School Student Representative but the Committee remains concerned at the persistence of this phenomenon in schools, in particular against children with disabilities and of foreign origin (Concluding Observation from 26 June 2009 (CRC/C/SWE/CO/4), para 58-59).34 Chapter 2 paras. 2-6 Education Act (2010:800).

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these questions any less important. I hope to have the opportunity to

concentrate on undocumented children’s right to preschool and leisure-time

centres later in my career.

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2 The Right to Education for Undocumented Children according to the Convention on the Rights of the Child (CRC)

2.1 General Information about the CRC and its Monitoring System

2.1.1 Introduction to the CRC In 1959 The United Nations decided to adopt the Declaration on the Rights

of the Child. The Declaration consisted of ten main principles. Shortly after

its adoption many realized that only a legally binding convention would be

of a sufficient protection for children’s needs. It was however not until 1989

that the UN General Assembly adopted a comprehensive treaty, the

Convention on the Rights of the Child. The Convention came into force one

year later. The Convention is the only human rights treaty that is adopted by

all states, except the United States and Somalia. It is also the first treaty that

includes civil, political, economic, social and cultural rights in one

document. It has been created to establish special guarantees for the

protection of children.35

When describing the Convention on the Rights of the Child, four general

principles are often mentioned:

- Non-discrimination (article 2),

- Best Interest of the Child (article. 3(1)),

- Right to Life, Survival and Development (article 6), and

- Respect for the Views of the Child (article. 12).

According to the Committee on the Rights of the Child, the development of

children’s rights perspective throughout Government, Parliament and the

35 M. Nowak, Introduction to the International Human Rights Regime (2002), pages 93.

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judiciary is required for effective implementation of the whole Convention.

The four principles are fundamental when it comes to an effective

implementation of children’s rights and will be described in chapter 2.4.36

2.1.2 The Committee on the Rights of the ChildThe Committee on the Rights of the Child, an international monitoring body

of the Convention, protects the Convention on the Rights of the Child. In

article 43 of the Convention it is stated, “there shall be a Committee on the

Rights of the Child, which shall carry out the functions” in the Convention.

The committee has 18 independent experts that monitor the implementation

of the Convention. It also monitors the three optional protocols to the

convention.37

According to article 44(2) in Convention on the Rights of the Child the

Member States write state reports to the Committee. The reports shall

indicate factors and difficulties affecting the degree of fulfilment of the

obligations under the Convention. A state party must provide the Committee

with information on the measures they have adopted and which effect it has

raised.38 The Committee has a cooperation with the United Nations

Children’s Fund (UNICEF) and other competent bodies.39 UNICEF and

other international non-governmental organisations (NGO’s) are therefore

important when it comes writing additional information to the state reports.

36 CRC General Comment No. 5 (2005), General measures of implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44, para. 6), para. 12. 37 In 2011, the third optional protocol, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, was approved by the General Assembly of the United Nations. It came into force in April 2014. It allows individual children to submit complaints concerning violations against the CRC and its protocols. The individual complaints procedure will set precedents to the Convention on the Rights of the Child. Sweden has not yet ratified the third protocol to the Convention on the Rights of the Child. The other two optional protocols are the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (adopted in May 2000) and Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (adopted in May 2000).38 Article 44 (1) Convention on the Rights of the Child.39 Article 45 Convention on the Rights of the Child.

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If the Committee find inadequacies or failure of implementation of the

Convention concerning a member state’s implementation of, for example,

the child’s right to education, the Committee will in its Concluding

Observations make suggestions and recommendations40 to fulfil the

obligations of the Convention.41

The Committee also publish General Comments to the Convention on the

Rights of the Child.42 Since the General Assembly of the United Nations

adopted the Convention in 1989 there has been 17 General Comments that

express the Committees essential interpretive views. As mentioned above,

the General Comments are neither precedent nor preparatory work, but

rather guidance to the Member States and not binding rules. However, the

fact that they are not binding rules does not make them less important when

it comes to the realization of human rights. General Comments seek to

enhance the understanding of the importance of the rights in the

Convention. The authoritative interpretation are based on the Committee’s

experience of monitoring reports from States parties and the systematic

violations, misunderstood provisions or emerging issues relevant to the

treaties, which give the General Comments an important role when it comes

to interpreting human rights treaties.

To the Convention, the United Nations General Assembly have also adopted

three additional protocols. The first two were adopted in 2000; Optional

Protocol to the Convention on the Rights of the Child on the sale of

children, child prostitution and child pornography and Optional Protocol to

the Convention on the Rights of the Child on the involvement of children in

armed conflict. In 2011 the United Nations General Assembly adopted the

third optional Protocol to the Convention on the Rights of the Child on

communication procedures. The third protocol gives individuals or group of

individuals an individual communication procedure and can claim to be

40 Article 45 (d) Convention on the Rights of the Child.41 See for example Sweden’s Concluding Observations from 30 March 2005 (CRC/C/15/Add.248), paragraph 37 and from 26 June 2009 (CRC/C/SWE/CO/4), paras. 55-59.42 Article 45 (d) Convention on the Rights of the Child.

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victims of a violation by that State party of any of the rights set forth in the

Convention or in the optional protocols to the Convention.43

2.2 Do Undocumented Children Have Human Rights?

The first question that must be answered is whether human rights are

applicable to undocumented children? Human rights, including children’s

rights law does not automatically guarantee a right to migrate or a right to

stay for a longer time in a country of one’s own choosing.44 According to

international law it is the contracting State that controls the entry, residence

and the removal of aliens.45 But, that does not mean that the State can act

contrary to the international treaties.

Human rights, including children’s rights law, are not applicable to every

human being. It requires that there is a connection between a state and an

individual so that a judicial link has been established.46 Such a link exists

between the Convention on the Rights of the Child and undocumented

children. Firstly, the Convention contains wordings like “every child”47 and

that rights must be enjoyed “irrespective of status”48. In addition it is

unthinkable that the purpose of the Convention is compatible with excluding

some children from the rights that are protected. Consequently, the

Convention cannot be regarded as limited to children who are citizens of the

State concerned.49 Accordingly, the Committee on the Rights of the Child

43 Optional Protocol to the Convention on the Rights of the Child on a Communication Procedure, Article 5 (1).44 Vandenhole, Undocumented children and the right to education: Illusory Right or Empowering Lever?, International Journal of Children’s Rights 19 (2011) 613–639, page 617.45 Hathaway, The Law of Refugee Status, Second Edition (2014), pages 30-31.46 Vandenhole, Undocumented Children and the Right to Education: Illusory Right or Empowering Lever?, International Journal of Children’s Rights 19 (2011) 613–639, page 617.47 Article 28 (2) Convention on the Rights of the Child.48 Article 2 (2) Convention on the Rights of the Child. CRC General Comment No. 6 (2005), Treatment of unaccompanied and separated children outside their country of origin, para. 5.49 CRC General Comment No. 6 (2005), Treatment of unaccompanied and separated children outside their country of origin, para. 12.

21

has stated that the Convention on the Rights of the Child applies to every

unaccompanied and separated child within a member state’s territory and

subject to its jurisdiction, regardless of nationality or immigration status.50

The argument of the Committee on the Rights of the Child, has also been

made by the Committee on Economic, Social and Cultural Rights: “The

Committee takes note of Article 2 of the Convention on the Rights of the

Child and Article 3 (e) of the UNESCO Convention against Discrimination

in Education and confirms 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.” 51

In conclusion, undocumented children have a right to education according to

the Convention on the Rights of the Child, as well as under other human

rights instruments, and the State cannot exclude them from the right to

education.

2.3 Articles 28 and 29 in the CRCAlmost every international treaty states that there is a right to free primary

education.52 The right to education is recognised as being essential because

it is necessary to be able to fulfil other human rights. If a child is deprived of

education, it may result in poverty. Therefore, the right to education is

spelled out to be an empowerment right, where education is the primary

50 CRC General Comment No. 6 (2005), Treatment of unaccompanied and separated children outside their country of origin, para. 5.51 CESCR General Comment No. 13, The Right to Education (Article 13 of the Covenant),UN Doc. E/C.12/1999/10. In Article 2 (1) the International Covenant on Civil and Political Rights recognizes civil and political rights in “all individuals within its territory and subject to its jurisdiction”, including illegal immigrants. It also states that everyone can exercise all human rights “without distinction of any kind, such as race, colour, birth or other status.” 52 The right to education has been recognized as a fundamental right since the Universal Declaration on Human Right (Article 26 UDHR) was adopted in 1948. UNESCO Convention Against Discrimination in Education, International Covenant on the Elimination of all forms of Discrimination (Article 7), International Covenant on Economic, Social and Cultural Rights (Article 13), Convention on the Elimination of All Forms of Discrimination Against Women (Article 10), Convention on the Rights of the Child (Articles 28-29), Indigenous and Tribal Peoples Convention (Articles 26-31) and Convention on the Rights of Persons with Disabilities (Article 24).

22

brick for adults and children to lift themselves out of poverty. 53 Education is

also a tool for promoting and protecting human rights generally.54

The right to education is regulated in the Articles 28 and 29 of the

Convention on the Rights of the Child. Article 28 (1) describes the right to

access education, that must be achieved “on the basis of equal

opportunity”55. This is essential due to the large number of children that

suffer from discrimination. The description, “equal opportunities”, is a

stronger formulation than the one in the non-discrimination article56 of the

Convention. It clearly obliges States not only to secure formal equality but

also substantive equality, which often requires active policies.57

The Right to Education is not only a right on paper, instead it requires that

children are given the right to education in practice. The Committee on the

Rights of the Child has emphasized that education should be child-friendly,

inspiring and motivating the individual child. Schools should create a

humane atmosphere and give children the possibility to develop according

to their developing capacities.58 Prof. Katarina Tomasevski, former UN

special rapporteur on the Right to Education of the United Nations Human

Rights Commission, has underlined that with realization of the 4 A:s;

availability, accessibility, acceptability and adaptability, there can be a

genuine right to education for children.59 This will later be explained in

chapter 2.5.3.

Article 28 concentrates on the obligations of State parties in relation to

availability60 and accessibility61. It is stated that education must be

53 Bhabha, Children Without a State – A Global Human Rights Challenge, pages 111-112.54 Struthers, Human Rights Education: Educating About, Through and for Human Rights, The International Journal of Human Rights, Volume 19, Issue1 pages 53-73.55 Article 28 (1) Convention on the Rights of the Child.56 Article 2 Convention on the Rights of the Child.57 Verheyde, A Commentary on the United Nations Convention on the Rights of the Child, Article 28 – The Right to Education, page 36.58 CRC General Comment No. 1 (2001): The Aims of Education, para. 1259 K. Tomasevski, Human Rights Obligation in Education – The 4-A Scheme (2006), page 13.60 For more information see chapter 2.5.2.1.61 For more information see chapter 2.5.2.2.

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“available and accessible to every child”.62 The accessibility has been

described in doctrine to have three different dimensions; non-discrimination,

physical access, and economical access.63

Article 28 states the minimum requirement by the State Parties, which is

free compulsory primary education for all. According to international

human rights law and especially Articles 28 and 29 all children have the

right to education. As stated above “every child” means that it does not

matter what judicial status the child has, he or she has always a right to

education, even when being in the state unlawfully, which includes

undocumented children.64 The articles combined gives a child a right to a

school place, to curriculum and support, and to a learning environment

where the child’s abilities can be supported and developed to their fullest

potential.65 To fulfil the obligations in Article 28 there also has to be

teachers who are educated and trained to teach and should have perfect

knowledge of the language through which they teach.66

According to Article 28 (1) (e) the State Parties shall “take measures to

encourage regular attendance at schools and the reduction of drop-out

rates”. Undocumented children have a higher risk of drop-out from

school.67 The Committee on the Rights of the Child has found this

obligation for the state to be important, not the least because of that the

children who drop-out often come from groups generally discriminated in

relation to the right to education.68 These children also tend to move more

often than other children; to avoid being found.

62 Article 28 (1) (b) Convention on the Rights of the Child.63 UNICEF (2008), Handbok om barnkonventionen, page 301.64 Verheyde, A Commentary on the United Nations Convention on the Rights of the Child, Article 28 – The Right to Education, page 39. 65 Candappa, The Right to Education and an Adequate Standard of Living: Refugee Children in the UK, page 266.66 Tomaskevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), pages 23-24.67 Vandenhole, Undocumented children and the right to education: Illusory Right or Empowering Lever?, International Journal of Children’s Rights 19 (2011) 613–639, pages 614-615.68 Implementation Handbook for the Convention on the Rights for the Child, page 426 and Concluding Observations: Estonia (CRC/C/15/Add.196), para. 42.

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Furthermore, if the education is of good quality and benefit to the children,

the risk for drop-outs will get lower.69 The children’s participation in the

education will likewise give a positive outcome when it comes to drop-

outs.70

It is important for the Governments to make the education available and

accessible also for the undocumented children. It is well known that they are

often in hiding and living with a fear of being found and sent back to the

state of origin. Therefore making the education available and accessible for

undocumented children is not necessary the same as making it available and

accessible for the children from that state. There has to be schools that are

prepared to educate children from many different origins and with different

education skills. To be able to make the education accessible for

undocumented children, the state has to ensure of a safe environment while

in school. If there will be doubt concerning the undocumented children’s

safety or not, these children will not attend the education at all.

The Conventions second Article that regulate the right to education, Article

29, focuses on the development of the child’s personality, talents and mental

and physical abilities to their fullest potential (the quality of the education).

It emphasizes the importance of the links between other provisions of the

Convention and that it cannot function isolated from these provisions. 71 For

example, there is a link between Article 29 and the Conventions four

fundamental principles earlier described.72 It will not be possible to fulfill

the child’s right to education without the realization of the four principles.

69 Verheyde, A Commentary on the United Nations Convention on the Rights of the Child – Article 28 The Right to education, page 11.70 Handbok om barnkonventionen, page 303.71 CRC General Comment No. 1 (2001), Article 29 (1): The Aims of Education, paras. 4-6. CRC and General Comment No. 7 (2005), Implementing Child Rights in Early Childhood, para. 24.72 CRC General Comment No. 1 (2001), Article 29 (1): The Aims of Education, paras. 4-6 and CRC General Comment No. 7 (2007), Implementing Child Rights in Early Childhood, para. 24.

25

Article 29 (1) underlines the individual and subjective right to a specific

quality of education.73 It also describes that the goal with education is to

empower the child by developing his or her skills, learning and other

capacities, human dignity, self-esteem and self-confidence.74 The regulation

in Article 29 is to be understood as that the education must give the

possibility for children to enjoy their human rights, not only within the

curriculum but also through teaching methods and the education

environment.75 The child must be respected76, including strict limits placed

on school discipline. Consequently, the child’s views must be freely

expressed.77

Article 29’s provisions are expressed in general terms which might lead

States to assume that they need not appear in legislation or administrative

directives. In a worst case scenario states may fail to inform about education

policies. Therefore, the Committee recommends State Parties to incorporate

the principles of Article 29 into law and policy at all levels.78 When applied

to undocumented children, this right must be known to children and their

guardians. There must be routines within the State concerning how to

inform and reach out to undocumented children of their rights and make the

information accessible to this group early on.

There is a risk for poverty and social exclusion for all migrants without

proper education, but for undocumented children the risk is even higher.

Therefore, it is particularly important to give access to education to this

group of children.79 Access to education for undocumented children does not

73 CRC General Comment No. 1 (2001): Article 29 (1) - The Aims of Education, para 9.74 Ibid, para 2.75 UNICEF (2007), Implementation Handbook for the Convention on the Rights of the Child, page 439.76 The word “respect” implies does not only imply tolerance and understanding. It underlines the equal worth of peoples of all cultures, without condescension. (Implementation Handbook on for the Convention on the Rights of the Child, page 445.)77 CRC General Comment No. 8 (2006), The Right of the Child to Protection from Corporal Punishment and other Cruel or Degrading Forms of Punishment, para. 7.78 Implementation Handbook on for the Convention on the Rights of the Child, page 440.79 Bhabha, Children Without a State - A Global Human Rights Challenge, page 111.

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only uphold the right to education, it also means an introduction to the

society and a possibility to live life and act as any other child.80

Undocumented children are at risk of receiving lower results/grades than

other children in general.81 For example, an unsafe educational environment

(the risk of being taken away) and physically burdensome surroundings

affect children negatively. But there is also a risk of not receiving grades or

diplomas at the end of the education.82 There are information that indicates

that undocumented children have a harder time to receive grades or

documentation that show the level of the child’s knowledge, due to

administrative problems with the registration of grades but also because

these children can in an acute situation leave school without any notice that

causes difficulties particular in preparation of relocation, resettlement or

return.83

2.4 The Four Principles of the CRCThe Committee on the Rights of the Child has identified four general

principles of the Convention on the Rights of the Child for interpreting and

implementing all rights of the child. The four general principles are non-

discrimination, the best interest of the child, the right to life, survival and

development and respect for the views of the child. These rights can

explicitly be found in the Convention.84

As described under chapter 1.5, the reason for using the four principles of

the Convention on the Rights of the Child is to point out the importance of

80 Ibid, page 113 f.81 PICUM (2013), Human Rights of Undocumented Adolescents and Youth, page 39.82 PICUM (2015), Protecting Undocumented Children, Promising Policies and Practices from Governments (2015), page 10 and Bhabha, Children Without a State - A Global Human Rights Challenge, page 115. Save the Children (2008), Barn utan papper – Jag vill bara landa, page 78. Stockholm City Mission, Stockholms Stadsmissions Barn- och Ungdomsrapport (2014), Tema: Barn till papperslösa, page. 24.83 CRC General Comment No. 6 (2005), Treatment of unaccompanied and separated children outside their country of origin, para. 42.84 CRC General Comment No 5, General measures of implementation of the Convention on the Rights of the Child (Articles. 4, 42 and 44, para. 6) para. 12, and CRC General Comment No. 2 (2002), The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, para. 2.

27

the child’s enjoyment of these rights and effect on other human rights of the

child, such as the right to education. If the State cannot fulfil its obligations

according to the A-4 scheme, which I will describe in the chapter 2.5.2, it

can generate that children’s human rights will not be achievable in practice,

it will only be rights on paper.

2.4.1 Non-discrimination (Article 2)Article 2 of the Convention describes that “State Parties shall respect and

ensure that each child within their jurisdiction is entitled to the rights in the

Convention without discrimination of any kind and irrespective of its legal

status”. As described under chapter 2.2 children’s right to education is

extended to all persons of school age residing in the territory of a State

including non-nationals and irrespective of their legal status.85 This

argumentation is also supported by other human rights treaties.86

The non-discrimination obligation demands that States actively identify

individual children and groups of children the recognition and realization of

whose rights may demand special measures. It may require changes in

legislation, administration and resource allocation, but also educational

measures to be able to change attitudes. Though, the principle non-

discrimination does not mean identical treatment. 87 When it comes to

undocumented children they come from many different countries and have

different educational experience. It is therefore important to investigate the

undocumented children’s knowledge to be able to give every child the

quality of education he or she has the right to receive. Reports show that

these children are often discriminated and placed inappropriately in “special

85 Verheyde, A Commentary on the United Nations Convention on the Rights of the Child – Article 28 The Right to Education, page 39.86 The state parties shall remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health. The state shall also ensure that public educational institutions are open to non-citizens and children of undocumented immigrants residing in the territory of a State party (General Recommendation No 30 (2005) International Convention on Elimination on All Forms of Racial Discrimination, para 29-30).87 CRC General Comment No. 5 (2003), General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44 para 6), para 12 and CCPR General Comment No. 18 (1989): Non-discrimination, para 8.

28

education classes” instead of mainstream education, as their language

difficulties can be misinterpreted as learning difficulties. This causes

unnecessary segregation for these children.88 If these children are not taken

care of they risk being exploited. Therefore these individuals need to be

protected in all available fields, especially within the educational system.

2.4.2 The Best Interest of the Child (Article 3(1))According to the fundamental principle that is expressed in Article 3 of the

Convention on the Right of the Child “the best interest of the child shall be

of primary consideration”. The best interest of the child shall be assessed

and taken into account as a primary consideration in “all actions” or

decisions that concern him or her, both in the public and private sphere.89

Article 3 refers to actions undertaken by institutions, courts of law,

administrative authorities or legislative bodies. The best interest of the child

must be respected through active measures by the Government, Parliament

and the judiciary. All legislative, administrative and judicial bodies or

institutions must apply the best interests principle by systematically

considering how children’s rights and interests are or will be affected by

their decisions and actions. It must be emphasized that it concerns all

children. Decisions that affect children indirectly must also be considered

according to the best interest of the Child.90 For example the Committee on

the Rights of the Child has also declared the “firewall” principle of

prohibiting service providers (school administrators) from reporting

undocumented migrants to immigration authorities as the best interest of the

child.91

88 PICUM (2013), Children First and Foremost, page 41.The Swedish School Inspectorate, Utbildning för asylsökande och barn som vistas i landet utan tillstånd, pages 25-26. 89 CRC General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3, para. 1), para 1.90 CRC General Comment No. 5 (2003), General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44 para 6), para 12.91 Committee on the Rights of the Child, 2012 Day of General Discussion and Rights of Accompanied Children in an Irregular Situation, Paper prepared by PICUM, Platform for International Cooperation on Undocumented Migrants for UNICEF Brussels Office, page 39.

29

The Committee on the Rights of the Child describes the best interest of the

child principle in three dimensions:92

1) A substantive right: A child shall always have his or her best

interests assessed and taken as a primary consideration. This

includes when there are different interests that can be considered in

order to reach a decision. The State also have to guarantee the best

interest of the child whenever a decision is to be made concerning a

child, a group of identified or unidentified children or children in

general.

2) An interpretative legal principle: If there is more than one legal

interpretation available, the interpretation which most effectively

serves the child’s best interest should be chosen.

3) A rule of procedure: In each decision taken, there must be an

assessment of impact, that express how the best interest of the child

has been considered.

To have access to free of charge qualitative education lays in the best

interest of the child. Therefore, all decisions on measures and actions taken,

concerning a specific child or a group of children, must respect this

fundamental principle. If State Parties shall be able to give access to quality

education there needs to be in place well-educated teachers and other

professionals, working in different education-related settings, as well as a

child-friendly environments and appropriate teaching and learning

methods.93

For the undocumented child, the best interest for him or her would be to feel

safe while attending school. The child should receive quality education and

with the support necessary, in a language the child can understand, in order

to make individual progress. After the education, he or she shall be given

grades and diplomas. This is all decisions that governments and authorities

have to take in the best interest of the child. When governments and relevant

92 CRC General Comment No. 14 (2013) on the Right of the Child to have his or her Best Interests Taken as a Primary Consideration (Article 3, para. 1), para 6.93 Ibid, para. 79.

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authorities cannot meet these requirements and safeguard the best interest of

the child there is a risk that the undocumented child does not attend school

at all.

2.4.3 The Right to Life, Survival and Development (Article 6)

“State Parties recognize that every child has the inherent right to life. State

Parties shall ensure to the maximum extent possible the survival and

development of the child.”94 The Committee on the Rights of the Child

wants States to interpret the word “development” in its broadest sense as a

holistic concept, embracing the child’s physical, mental, spiritual, moral,

psychological and social development. When implementing measures the

State should always strive to achieve optimal development for all children.95

In addition to enjoying their human rights, healthy well-educated

undocumented children will have better cognitive, social and physical

development and thus contribute more to society in later life than

disengaged, disempowered young migrant children living in inescapable

destitution contribute.96 It shall be underlined that with development in

education means that every child has the right to receive an education of

good quality which in turn requires several factors to be achieved. Firstly, it

needs a focus on the quality of the learning environment. Secondly, focus on

teaching and learning processes and materials, and thirdly focus of learning

outputs.97

When trying to develop a child’s abilities to their fullest the school has to

start with investigating the child’s level of educational knowledge.98

Thereafter the child can be given suitable assignments and support if

needed. Though, it is important to underline that the school shall also

control if the child develop the expected outputs, and if not, revise the

94 Article 6 Convention on the Rights of the Child.95 CRC General Comment No. 5 (2003), General Measures of Implementation of the Convention on the Rights of the Child (Articles. 4, 42 and 44 para 6), para 12.96 PICUM (2013), Children First and Foremost, page 5.97 CRC General Comment No. 1 (2001), Article 29 - The Aims of Education, para. 22.98 The Swedish Agency for Education, Skolverkets allmänna råd med kommentarer, Utbildning för nyanlända elever (SKOLFS 2016:2), pages 20-26.

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teaching methods.99 If using this method the child has the possibility to

develop to its fullest potential.

There is a link between Article 6 and Article 29 of the Convention. Article

29 underlines that a child has a right to receive education that contribute to

development of his or her personality, talents, metal and physical abilities to

their fullest potential. This also shows that there is a link between the

development for the child and the quality in education. There has to be a

certain acceptability and adaptability in the education in order to achieve

development for the child, which will be developed later in the thesis.100 For

the already exposed undocumented child this is of course crucial. The

undocumented child needs the stability that can be found in the school with

trained teachers who can educate the child in a language that he or she

understands to be able to reach the development that these articles aim at.

This development gives the undocumented child the possibility to receive an

introduction to the society and a possibility to interact as any other child in

an educational environment.

2.4.4 Respect for the Views of the Child (Article 12)

Article 12 (1) of the Convention on the Rights of the Child states that “State

Parties shall assure the child who is capable of forming his or her own views

the right to express those views freely in all matters affecting the child” and

to have them taken into account. Further is described that “the child shall in

particular be provided with the opportunity to be heard in any judicial and

administrative proceedings affecting the child, either directly, or through

representative or a representative or an appropriate body, in a manner

consistent with the procedural rules of international law”.

The Convention on the Rights of the Child puts emphasis on the status of the

child as an active participant in the promotion, protection and monitoring of his

or her rights. When it comes to the child’s education the Committee also has 99 Chapter 3 paras. 3-12 Education Act (2010:800).100 See chapter 3.5.2.

32

recognized the key role played by the school environment in order to

enhance and promote child participation.101 The Committee on the Right of

the Child desires to underline that Article 12 of the Convention applies both

to younger and to older children. Both are holders of rights and even the

youngest children are entitled to express their views. 102 The opinion of the

child should be “given due weight in accordance with the age and maturity

of the child.103

For an undocumented child that already is in a very vulnerable situation it is

even more important to be heard, seen and to have the right to expression,

without the risk of being further exposed to authorities. However, being in

hiding is of course problematic when it comes to the possibility for

undocumented children to be heard, or to be seen for that matter. Therefore

governments and authorities must find ways to preserve this right for the

undocumented child, for example through a representative or an appropriate

body as it is stated in Article 12 of the Convention.

2.5 State Obligations according to the CRC

2.5.1 Implementation of the CRCWhen a State ratifies a Convention it gives the State obligations concerning

implementation of that Convention.104 The measures for implementation of

human rights can be progressive or immediate. According to the first

sentence in article 4 of the Convention, shall States “undertake all

appropriate, legislative, and other measures for the implementation” of the

101 Committee on the Rights of the Child, Day of General Discussion on the Right to be Heard, para. 20. In the General Comment No. 1 on The Aims of Education (para. 9) is also stated that “the participation of children in school life, the creation of school communities and student councils, peer education and peer counselling, and the involvement of children in school disciplinary proceedings should be promoted as part of the process of learning and experiencing the realization of rights”.102 CRC General Comment No. 7 (2005), Implementing child rights in early childhood, para. 14.103 Article 12 (1) Convention on the Rights of the Child.104 The Committee on the Rights of the Child recommends incorporation of the Convention, which is the most common way to implement international human rights treaties.

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rights in the Convention. The second sentence of Article 4 of the

Convention reads that “With regard to economic, social and cultural rights,

State Parties shall undertake such measures to the maximum extent of

available resources”, which means that these rights are not immediate. 105

The Committee on the Rights of the Child has described that there is an

understanding of absence of resources that can limit a full implementation

of economic, social and cultural rights in some States. The so called

“progressive realization” of such rights. 106 It is a fact that full realization of

all economic, social and cultural rights will generally not be achieved in a

short period of time. 107 However, obligations of immediate implementation,

for example, to ensure and to guarantee the rights without discrimination,

have to be implemented in a reasonably short time after ratification by the

State in order to fulfill its obligations.108 The State shall therefore consider

the available resources; however, they must prioritize implementation of

children’s rights in the State budget. It shall be underlined that minimum

core obligation must always be prioritized and implemented immediately,

regardless of available sources.109

When a State has ratified a Convention, or in its legislation agreed upon, for

example, that undocumented children are entitled to education, it is expected

that the State fully implement this right in practice. In addition, this

vulnerable group is to be considered subject to immediate implementation

also concerning their civil rights such as the right to education.

It is not for the Committee on the Rights of the Child to decide the forms for

implementation of the Convention.110 However, the ratifying State has to

105 Vandenhole, Routhledge International Handbook of Children’s Rights Studies, page 31.106 CRC General Comments 5 (2003), General measures of implementation of the Convention on the Rights of the Child (Aritcles 4, 42 and 44, para 6), para. 7.107 Detrick (1999), A Commentary of the United Nations Convention on the Rights of the Child, page 106.108 Rishmawi (2006), A Commentary on the United Nations Convention on the Rights of the Child, Article 4 The Nature of States Parties Obligations, page 27. Also compare with Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination.109 Vandenhole, Routhledge International Handbook of Children’s Rights Studies, page 31.

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ensure that all domestic legislation is fully compatible with the Convention

and that the Convention’s principles and provisions can be directly applied.

However, it is not enough to have domestic legislation that protects

undocumented children’s right to education if it does not give the children

actual education in practice. The obligation to take legislative measures

according to Article 4 of the Convention is an immediate obligation.111 The

immediate requirement is because of its indispensable tool for the children’s

possibility to realize his/hers economic, social and cultural rights.112

In many countries the legislation and policy governing compulsory

education refers to ‘all children’, and therefore include undocumented

children. However, for example in countries where official examinations are

required to pass from primary to secondary education, this can prevent

children even accessing compulsory education classes.113 Governments have

to make it possible for all children to have access to education; otherwise

the right to education exists only on paper.114 According to Article 27 of the

Vienna Convention on the Law of Treaties “A State Party to a treaty may

not invoke the provisions of its internal law as justification for it’s

failure to perform the treaty.”.

Strengthening children’s rights also demands effective remedies if there are

violations of their rights.115 There shall also be a rigorous monitoring of

implementation. This can be established if the implementation process is 110 Though, the Committee on the Rights of the Child welcomes the incorporation of the Convention into domestic law (CRC General Comment No. 5 (2003), General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44 para. 6), para. 20).111 Rishmawi, A Commentary on the United Nations Convention on the Rights of the Child (2006), page 27.112 Ibid, page 26.113 PICUM (2015), Protecting Undocumented Children – Promising Policies and Practices from Governments, page 10.114 Tomasevski (2006), Human Rights Obligations in Education – The 4-A Scheme, page 7.115 General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44, para 6), para 24. In 2011 the United Nations General Assembly adopted the third optional protocol to the convention on the rights of the child on a communications procedure. The third protocol gives individuals or group of individuals an individual communication procedure and can claim to be victims of a violation by that State party of any of the rights set forth in the CRC or in the optional protocols to the Convention (Optional Protocol to the Convention on the Rights of the Child on a Communication Procedure, Article 5(1)).

35

goes throughout relevant authorities and by independent monitoring by

national human rights institutions, NGOs and others.116 For example training

in children’s human rights is fundamental. The Committee on the Rights of

the Child has emphasized that it is an obligation for State Parties to develop

training and capacity-building for all those involved in the implementation

process - government officials, parliamentarians and members of the

judiciary - and for all those working with and for children.117 Persons

responsible for making decisions that will affect children’s human rights

must have a high knowledge in this field and their training needs to be

systematic and ongoing. The trainings purpose is to give emphasis to the

status of the child as a holder of human rights, to increase knowledge and

understanding of the Convention and to inspire active respect for all its

provisions.118 In the Concluding Observation to Sweden, the Committee on

the Rights of the Child was concerned about that the State has insufficient

training for relevant professionals on best interests determination and

Sweden have to ensure such training.119

2.5.2 The 4-A SchemeThe so called A-4 scheme has been created by Professor Tomasevski,

former UN special rapporteur on the right to education for the United

Nations Human Rights Commission. Mostly it has been referred to by the

Committee on Economic, Social and Cultural Rights. However, the

Committee on the Rights of the Child supports the A-4 scheme through its

referring to the General Comment No. 13, Right to Education (Article 13),

of the Committee on Economic, Social and Cultural Rights. 120 The

Committee on the Rights of the Child use the wordings availability,

accessibility, acceptability and adaptability when describing the right to

education. Important doctrine on the right to education also raises the

116 General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (Articles. 4, 42 and 44, para 6), para 27.117 Ibid, paras. 53-55.118 Ibid, para. 53.119 Concluding Observations on the fifth periodic report to Sweden (6 March 2015) CRC/C/SWE/5, paras. 17-18.120 CRC General Comment No. 1 – Aims with Education, page 9, note 1.

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importance of the A-4 scheme and it can be described as crucial when

discussing the right to education.121

Access to remedies for alleged denials and violations make rights more

effective. However, when it comes to economic and social rights, including

the rights to education, they are often forgotten.122 This is also the case for

the undocumented children’s right to education. Therefore, the right to

education is accompanied with governmental obligations. Under chapter 1.5

I described that this method focuses on the State obligations. The right to

education sets out four essential features that the State should exhibit,

namely; availability, accessibility, acceptability and adaptability, the A-4

scheme.123

2.5.2.1 Availability (Article 28 (1)(a)(b))Availability of education requires two different governmental obligations.

Firstly, as a civil and political right, it requires the government to allow

private schools. Secondly, as a social and economic right, it requires public

schools that the government establish.124 This is because there must be

availability of schools in a sufficient number and free of charge. There must

also be enough available trained teachers125 and school buildings appropriate

for the education being held, including sanitation facilities as toilets for both

sexes and facilities such as a library, computer facilities and information

technology.126

Because primary or compulsory education should be available to all school-

age children and free of charge, the government has to fund education of

121 Verheyde, A Commentary on the United Nations Convention on the Rights of the Child – Article 28 The Right to Education, page 15.122 Tomasevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), page 8-9.123 CESCR General Comment No. 13: The Right to Education Article 13, para 6 and Preliminary report of the Special Rapporteur on the right to education, E/CN.4/1999/49, paras. 42–74.124 Tomasevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), page 13.125 Teachers should be educated and trained to teach and should have perfect knowledge in the language which they teach. Verheyde, A Commentary to the United Nations Convention on the Rights of the Child – Article 28 The Right to education, page 16.126 CESCR General Comment No. 13: The Right to Education Article 13, para 6 (a).

37

good quality and available for all. 127 However, for undocumented children

education is not available for all but the reason it is not available is not due

to absence of schools; it can more often be because of absence of

information. The question therefore becomes whether governments have

done enough when it comes to informing this group of their rights. Due to

lack of information undocumented children might not know how or where

to obtain education. The lack of information concerning the undocumented

children’s right to education has also been reported by the school staff.128

Therefore, it is essential that governments make information concerning the

right to education available to this group and to the school staff.

For the undocumented children that do receive education several reports

point out that the education has a low quality when there is not teachers

available to educate in a language the child understands. There are also

reports of undocumented/migrant children and others being put in special

classes, which exclude these children from quality in education.

2.5.2.2 Accessibility (Article 28 (1)(b))The education has to be accessible to all children, in safety, and without

discrimination.129 Compulsory education shall be free of charge.130 Without

the free of charge guarantee in education, it will not be accessible for all.

Access means that the State has to count not only enrolment, but also

attendance and completion and therefore must limit school drop-outs.131 In

order to eliminate exclusion as mentioned earlier the Convention on the

127 Tomasevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), page 13.128 PICUM (2015), Protecting Undocumented Children – Promising Policies and Practices from Governments, page 10. 129 Article 2 and 28 (1) Convention on the Rights of the Child.130 Article 4 Convention against Discrimination in Education, articles 13 and 14 International Covenant on Economic, Social and Cultural, Rights and article 28 (1) of the Convention on the Rights of the Child. The Committee on Economic, Social and Cultural Rights (CESCR) has described the right to compulsory primary education free of charge for all in its General Comment No. 11 (1999) on plans of action for primary education and General Comment No. 13 (1999) on the right to education as well as in its Concluding Observations on many State Party reports submitted under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights.131 Article 28 (1)(e) Convention on the Rights of the Child.

38

Rights of the Child require all governments to ensure education for all

children, especially to eliminate exclusion.132

Making education free and without discrimination are both equally

important goals. As previous described in chapter 2.4.1 the Committee

explains that the education must be accessible to all, especially for the most

vulnerable groups and underlines that this extends to all persons residing in

the territory including non-nationals and irrespective their judicial status.133

The education also has to be within safe physical reach, the so called

physical accessibility and the education has to be affordable to all and

therefore an economic accessibility.

For the undocumented children the accessibility is of first concern. Without

access there is no need to speak of the other three A:s. For undocumented

children, access to education is presently a dismal situation. Inspections

show that few undocumented children attend school, although they have the

legal right.134 One obstacle according international reports can for example

be the lack of identity documents and proof of address.135

Based on the Convention on the Rights of the Child adopted in 1989, United

Nations General Assembly agreed in 2002 upon strategies and actions to

strengthen children’s right to education. The Member States shall promote

innovative programmes that encourage schools and communities to search

more actively for children who have dropped out or are excluded from

school and from learning and help them enrol, attend, and successfully

complete their education, involving governments as well as families,

communities and non-governmental organizations as partners in the

educational process. Special measures should be put in place to prevent and

reduce drop out due to, inter alia, entry into employment.136 This means that 132 Tomasevski, Human Rights Obligations in Education -The 4-A Scheme, page 44.133 CESCR General Comment No. 13: The Right to Education Article 13, para. 34.134 See for example chapter 3.2.1.2.135 PICUM (2013), Human Rights of Undocumented Adolescents and Youth, page 38.136 “A World Fit for Children”, Report of the Ad Hoc Committee of the Whole of the twenty-seventh special session of the UN General Assembly, 2002, A/S-27/19/Rev.1, paras. 39-40.

39

the State parties shall try to reach out to undocumented children to be able

to give access to education in practice. If not directly to the children, then

through non-governmental organisations, information on the authorities

websites or other active ways to come in contact with these children.

2.5.2.3 Acceptability (Article 29 (1))The substance of the education has to have a certain acceptability, which

means that it has to have good quality (teaching methods, curricula etc.).137

It therefore requires a focus on the quality of the learning environment, of

teaching and learning processes and materials, and of learning outputs.138

The school environment also has to be healthy and safe with professional

teachers who support the pupils. It is also important to educate the children

in a language they understand, otherwise it can preclude children from

attending school or learning.139 Of most importance for undocumented

children, who are often in hiding, is that they need to feel safe. To be sure of

that the police cannot come to school in order to place the child in detention.

2.5.2.4 Adaptability (Article 29 (2))An education that reaches out to all children needs to have adaptability. All

children have different needs in different stages in life. The education and

the teaching methods needs to be flexible.140 Article 29 (1)(c) of the

Convention formulates the adaptability in the education when stating that

“the development of respect for the child’s parents, his or her own cultural

identity, language and values, for the national values of the country

in which the child is living, the country from which he or she may originate,

and for civilizations different from his or her own”.

The adaptability in the education requires a process that takes into account

the children’s views. As mentioned under the description of the four general

principles Article 12 of the Convention guarantees that “the child who is

capable of forming his or her own views the right to express those views

137 CESCR General Comment No. 13: The Right to Education Article 13, para. 6 (c).138 CRC General Comment No. 1 (2001): Article 29 (1) - The Aim of Education, para. 22.139 Tomasevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), page 29.140 CESCR General Comment No. 13: The Right to Education Article 13, para 6 (d).

40

freely in all matters affecting the child”. Other provisions of the Convention

also require having certain adaptability to be able to obtain the right to

education. For example, important is also children’s freedom of thought,

conscience and religion141 and freedom of expression.142

The teaching methods that are being used need to be adapted to every

child’s conditions, and adapt to the best interest of each child, instead of

forcing children to adapt to whatever schooling that has been designed for

them.143 Undocumented children are a heterogeneous group. They come

from many different countries, speaks many different languages and have

different experience of schooling. Therefore, the teaching methods needs to

adapt to every undocumented child. Essential is of course that the education

is in a language they understand, otherwise the risk is that they will not

develop like children in general do who receive quality education. The risk

is also higher that the undocumented children will become dropouts when

not receiving a quality education.

2.6 Education for AllWith education for all indicates that no one is excluded from that right. As

stated under chapter 2.1 also undocumented children have a right to

education according to the Convention on the Rights of the Child and State

Parties cannot only apply the treaty obligations to its own citizens. The State

Parties shall also take all appropriate measures to ensure that the child is

entitled to the fundamental rights of the Convention on the Rights of the

Child, which is essential when it comes to the undocumented child’s right to

education. 144

The governmental obligations for the State Parties are crucial when

achieving education for all, including the undocumented children. The A-4

scheme with its four keystones (availability, accessibility, acceptability and 141 Article 14 (1) Convention on the Rights of the Child.142 Article 13 Convention on the Rights of the Child.143 Tomasevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Primer No. 3 (2001), page 31.144 Article 4 Convention on the Rights of the Child.

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adaptability) indicates what actions Governments have to do in order of

building an education that qualifies as a quality education. On one hand, it

does not matter if you have access to education if it does not have the

quality that is needed. On the other hand, if you not are feeling safe while in

school it does not matter if there are a sufficient number of schools with

good quality of the education, you might still not attend the education. The

question with safety for undocumented children can be lack of discretion on

the part of school administrations that might may be ill-informed about the

rights of undocumented children, as well as administrative requirements for

registration.145

National legislation of the State parties does not always live up to its

obligations according to the standards of the Convention. Even if there is a

national legislation that supports the undocumented child’s right to

education, practical barriers hinder the full realization of these legal rights

and, in this case, hinders from achieving education for all. The effect can

result in poverty and social exclusion of undocumented children and their

families.146 Therefore, the obligations of a State are not only having national

legislation in accordance with its international agreements but to ensure that

it is given effect in practice.

145 PICUM (2013), Human Rights of Undocumented Adolescents and Youth, page 38.146 PICUM (2013), Children First and Foremost, page 5.

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3 The Right to Education in Sweden for Undocumented Children

3.1 Sweden’s ratification of the CRC and its Legal Position in Swedish Law

Sweden has ratified almost every human right treaty developed under the

auspice of the United Nations.147 However, what legal effect on the Swedish

legislation does it actually have?

The Convention on the Rights of the Child was ratified by Sweden in 1990,

without any reservations.148 However, due to that Sweden is a dualistic

State these international treaties are not directly applicable as Swedish law.

Instead these treaties, including the Convention on the Right of the Child,

must be transformed149 to Swedish constitutional text in order to be directly

applicable as Swedish law by Swedish courts and by Swedish authorities.150

It is only the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR) that Sweden has incorporated into Swedish

147 Sweden has ratified seven UN treaties; International Covenant on Civil and Political Rights (ICCPR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Rights of the Child (CRC), Convention on Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture and Other Cruel, Inhuman Treatment (CAT), International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Convention on the Rights of Persons with Disabilities (ICRPD). Sweden has not yet ratified two UN treaties; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) adopted by the General Assembly in 1990 and International Convention for the Protection of All Persons of Enforced Disappearance (CED) adopted by the General Assembly in 1992. 148 Prop. 1989/90:107 om godkännande av FN-konventionen om barnets rättigheter, s. 27. The CRC applied with Swedish legislation in September 1990. 149 A ratified treaty can either be transformed, incorporated or the State can decide that there is norm harmony. With norm harmony means that nothing has to be done with the national legislation because the national legislation is already in accordance with the ratified treaty.150 It is only the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) that Sweden has incorporated into Swedish law.

43

law. The ECHR’s treaty text is therefore directly applicable to the Swedish

courts and by the Swedish authorities as Swedish law.

There have been and still are discussions151 whether Sweden should

incorporate the Convention to Swedish law as the European Convention on

Human Rights (ECHR).152 In 1997, Sweden initiated an inquiry of children’s

rights within Swedish regulations.153 A special investigator was tasked by

the Government to investigate areas essential for the child’s rights according

to the Convention and its two additional protocols ratified by Sweden.154

The investigator shall also analyze advantages and disadvantages with an

incorporation of the Convention into Swedish law.

In the Concluding Observations from 2015 the Committee on the Rights of

the Child urges Sweden to accelerate the inquiry and take all the necessary

measures to bring national legislation into full conformity with the

Convention, and that the Convention should always prevail when provisions

of domestic law conflict with the Convention.155

The result of the investigation shall be reported in February 2016. 156

However, the Swedish Prime Minister Stefan Löfven declared already in the

Government Policy in October 2014 that the Government will begin work to

incorporate the Convention into Swedish law.157

151 Previously it has not been seen as necessary by the Swedish Constitutional Committee. According to Sweden’s previous decisions concerning the human rights conventions is the principle that the ratified conventions cannot be direct applicable to the Swedish courts and authorities. The Swedish Constitutional Committee has found the wording in the human rights conventions to be obscure and recondite and that the rules is built upon a terminology that is not uniform nor adapted to the Swedish legislative practice. (Yttrande 1995/96:KU2y. For more decision see prop. 1989/90:107 Om godkännande av FN-konventionen om barnets rättigheter and betänkande 1989/90:SoU28 Socialutskottets betänkande om godkännande av FN-konventionen om barnets rättigheter.)152 SOU 2011:29 Samlat, genomtänkt och uthålligt? En utvärdering av regeringens nationella handlingsplan, s 232 f.153 SOU 2007:116, Barnets bästa i främsta rummet. FN’s konvention on barnets rättigheter i Sverige.154 Since the investigation started there the UN General Assembly has adopted a third optional protocol.155 Concluding Observations on the fifth period report of Sweden (6 March 2015) CRC/C/2015/5, para. 8.156 Kommittedirektiv 2013:35, Översyn av barnets rättigheter in svensk rätt and Kommittedirektiv 2015:17, Tilläggsdirektiv till Barnrättsutredningen.157 Statement of the Government Policy, October 2014. www.regeringen.se/contentassets/436960c05f524109b8a020b879efd76b/regeringsforklaringen-3-oktober-2014". Visited on 15 January 2016.

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The opinion of both Swedish Riksdag and previous Swedish Governments

have been that the Convention corresponds essentially with the Swedish

regulation and when it has not corresponded, the Swedish law has been

changed.158 If the investigator still finds that Sweden cannot incorporate the

Convention into Swedish law there will probably be a discussion regarding

the status of Sweden’s ratifications of international conventions and other

agreements when they are not directly applicable.

According to Swedish preparatory work concerning how to strengthen

children’s rights in Sweden it was underlined that authorities and

municipalities shall interpret and apply Swedish law in accordance with the

obligations in the Convention, in order to give children access to their

human rights in practice. Important to note is that this shall be considered in

all decisions where a child is involved.159

A tool of implementation of the Convention and an institution to protect

children’s human rights was established in Sweden in 1993, three years after

Sweden’s ratification of the Convention, which was the Children’s

Ombudsman. The Children’s Ombudsman monitors how the Convention is

compiled within society and pushes for its implementation in Sweden's

municipalities, county councils and authorities. The Ombudsman draws

attention to failures in the implementation of the Convention and proposes

changes to laws and ordinances. Hence the Children’s Ombudsman is of

great importance for the municipalities, county councils and authorities.160

The Committee on the Rights of the Child has since 2005 recommended that

the Children’s Ombudsman get a mandate to investigate individual

complaints.161 The ability of individuals to complain about the violation of

their rights of the Convention would bring real meaning to its rights. This

158 SOU 1997:116 Barnets bästa i främsta rummet. FNs konvention om barnets rättigheter i Sverige.159 Prop, 2009/10:232, Strategi för att stärka barnets rättigheter i Sverige, page 12.160 Skr. 2001/02:83, En nationell handlingsplan för de mänskliga rättigheterna, page 32-33. 161 Concluding Observation from 30 March 2005 (CRC/C/15/Add.248), para 7 a.

45

would also give the undocumented children an opportunity to have their

rights protected.

When the Vienna Declaration and Programme of Action was adopted 1993

by the World Conference on Human Rights it was suggested that States

integrate the Convention on the Rights of the Child into their national

human rights Action Plans.162 Sweden adopted a national plan of actions on

human rights (2002-2009).163 The plan of action described the Governments

action plan for human rights, which had children’s rights as one of its

prioritized questions and described the actions that Sweden planned to

undertake to improve the implementation of the Convention.164 The action

plans on human rights have generally been considered as an effective way to

strengthen human rights. However, when the Swedish plan of action in 2009

had not had the expected impact upon the Government and local authorities,

a new plan of action was not adopted after 2009.165 The Committee on the

Rights of the Child expressed that “The strategy must not be simply a list of

good intentions; it must include a description of a sustainable process for

realizing the rights of children throughout the State; it must go beyond

statements of policy and principle, to set real and achievable targets in

relation to the full range of economic, social and cultural and civil and

political rights for all children.”166

As previous described in chapter 3.2, an effect of Sweden’s ratification of

the Convention and due to several recommendations to Sweden, an

amendment to the Education Act (2010:800) gave the right to education for

the undocumented children in July 2013.167

162 World Conference on Human Rights, Vienna, 14-25 June 1993, “Vienna Declaration and Programme of Action”, A/CONF.157/23.163 Skr. 2001/02:83 En nationell handlingsplan för de mänskliga rättigheterna and skr. 2005/06:95 En nationell handlingsplan för de mänskliga rättigheterna.164 Skr. 2005/06:95 En nationell handlingsplan för de mänskliga rättigheterna, page 46.165 SOU 2011:29, Samlat, genomtänkt och uthålligt? En utvärdering av regeringens nationella handlingsplan för mänskliga rättigheter (2006-2009), page 16.166 CRC General Comment No. 5 (2003), General Measures of Implementation of the Convention on the Rights of the Child (articles 4, 42 and 44 para. 6), para. 32.167 Chapter 29 paragraph 2 (5) Education Act (2010:800).

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It can be concluded that the ratification of the Convention has resulted in

changes in Swedish legislation. For example, the amendment in the

Education Act that gives undocumented children the right to education.

However, it is problematic with Sweden being a dualistic State that needs to

transform international regulations into Swedish legislation. The real effect

of the Convention might stay as only a list of intentions, instead of giving

rights in practice.

3.2 The Swedish Education Act Effects for Right to Education for Undocumented Children

In chapter 3.2 I will evaluate if the Education Act gives undocumented

children the right to education in practice. The evaluation will concentrate

on the work of the two school authorities and what mandate they have and

how it is carried out when it comes to give access to education in practice

for undocumented children. Thereafter I will do the same evaluation

concerning the municipalities that are responsible for the undocumented

children’s right to education within its area.168

As written earlier, undocumented children were given the legal right to

education in Sweden in July 2013. The amendment was that “a person

staying in the country illegally” shall be considered as settled in Sweden.169

A child that is settled in Sweden has the right to education.170 Important to

underline is that the undocumented child does not only have a right to

education but a right to special support and education in the child’s mother

tongue171, school transport172, and pupil public health173.

168 Chapter 29 para. 6 Education Act.169 Chapter 29 paragraph 2 Education Act.170 Chapter 7 paragraph 3 Education Act.171 Chapter 10 para. 7 Education Act (2010:800) and Chapter 5 paras. 3-12 Compulsory School Ordinance (2011:185).172 Chapter 10 paras. 31-32 Education Act, Prop. 2012/13:58, Utbildning för barn som vistas i landet utan tillstånd, s. 19-21 and Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 16.173 Chapter 2 paras. 25-26 Education Act.

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The Committee on the Rights of the Child has in its Concluding

Observations from 2005 recommended Sweden to take action for the

undocumented children’s right to education.174 The Committee repeats itself

in the Concluding Observations from 2009 and recommend Sweden to

pursue its efforts to ensure that all children enjoy the right to education,

including children without residence permit, such as “children in hiding”

and undocumented children.175

The right to education also establishes a duty for children to attend school,

the so-called compulsory school attendance176. Education is defined as a

public good. Its importance is due to that the education will bring the

country well educated children who in the future can be economically self-

sustaining. Consequently, the State also gives the children a duty to attend

school.177 This duty gives the municipalities a right to carry out sanctions

towards the child’s parents if the child does not attend school.178 However,

children without a national registration, such as the undocumented, do not

have a compulsory school attendance as other children in Sweden.179 This

means that the municipality, where the child is settled, does not have to

search for these children in order to inform them of their legal right to

education. This is of course problematic, as well as it gives the impression

that the education for this group of children is not as important as for

children in general. The legislator expressed that as the undocumented child

is illegally in the country without the authorities’ knowledge, it would be

impossible for the municipality to carry out sanctions towards parents that

do not let their undocumented children to go to school, when they are living

in hiding.180 However, such regulation would probably have had an effect on

the municipality’s ambition to reach out to these children. Though the 174 Concluding Observation from 30 March 2005 (CRC/C/15/Add.248), para 37(a).175 Concluding Observation from 26 June 2009 (CRC/C/SWE/CO/4), para 55.176 Compulsory schooling means that neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education ( CESCR General Comment No. 11: Plans of Action for Primary Education (Art. 14), para. 6).177 Tomasevski; Right to education Primers No. 3, Human rights obligations: making education available, accessible, acceptable and adaptable (2001), page 15.178 Chapter 7 para. 23 Education Act.179 Chapter 7 para. 2 Education Act. and prop. 2009/10:165 Den nya skollagen – för kunskap, valfrihet och trygghet, page 591.

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municipalities are not obliged to by law search for undocumented children

within its area, the municipalities still have according to the Education Act a

responsibility to inform children and their parents about the municipality’s

schools, including the undocumented.181

In the preparatory work of the Education Act it is described that

undocumented children are in a very difficult situation that they often

cannot control. These children’s families can be in hiding from the

authorities, which increase the distress for the children. A right to education

is therefore crucial as it gives these children a level of knowledge like

children of the same age and the possibility to develop mentally, physical

and socially.182

Though the Education Act has been changed to include a right to education

for undocumented children, it does not seem to have an effect. The number

of undocumented children that in fact have education in practice are very

few. In a report made by the Swedish School Inspectorate it was identified

as a risk that not all children get access to education, despite their legal

right. The main concern was that the municipalities do not have access to

any clear and definite information concerning the number of undocumented

children that is living in within their area of concern.183 Knowledge about

the number of children that have the right to education is a prerequisite for

the municipalities to uphold their responsibility.184

The non-profit organisation Stockholm City Mission made an investigation

of the three largest cities in Sweden185 concerning the undocumented

children’s right to education. Their report clarified that many municipalities

assume that they do not have any undocumented children within their area, 180 Betänkande 2012/13:UbU12, Utbildning för barn som vistas i landet utan tillstånd, page 10 and SOU 2007:34 Skolgång för alla barn som ska avvisas eller utvisas, page 103.181 Chapter 29 para. 19 Education Act (2010:800).182 Prop. 2012/13:58, Utbildning för barn som vistas i landet utan tillstånd, s. 12.183 Skolinspektionen (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 11.184 Skolinspektionen (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 10.185 The three largest cities in Sweden are Stockholm, Gothenburg and Malmö.

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because they have not had any undocumented children in their schools.186

That is not a properly assessed or reasonable conclusion when it is well

known that many undocumented children do not go to school at all.

3.2.1 The Swedish School Authorities Responsibility for the realization of Undocumented Children’s Right to Education in Practice

The Swedish school authorities’ are responsible for the realization of

undocumented children’s right to education and that does not end with their

attendance at school. The authorities have to make sure that all children,

including the undocumented, receive an equal and quality education in a

safe environment, in accordance with the Swedish school legislation. The

school authorities mainly receive their mandate from the Government. It is

the Swedish Riksdag and the Government that decides the aims and rules

for the compulsory school through the Education Act, the Compulsory

School Ordinance and the Curricula. In Sweden the principal organizer of a

school, can either be a municipality187, a county council188, the State189 or the

operator of an independent school190. The organizer is responsible for the

quality and results of the education.191

The authorities, that monitor the organizers of the schools, are responsible to

protect and strengthen the children’s educational rights and are:

- The Swedish National Agency for Education,

- The Swedish School Inspectorate, and

- The National Agency for Special Needs Education and Schools.192

186 Stockholm’s City Mission (2014), Barn- och ungdomsrapport 2014, page 27.187 Chapter 2 para. 2 Education Act (2010:800).188 Chapter 2 para. 3 Education Act.189 Chapter 2 para. 4 Education Act.190 Chapter 2 para. 5 Education Act.191 Chapter 2 para. 8 Education Act.192 As stated in the delimitations of the thesis in chapter 1.6, I have clarified that I will not describe the work and effects of the National Agency for Special Needs Education and Schools upon my thesis purpose.

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3.2.1.1 The Swedish National Agency for EducationThe mandate of the Swedish National Agency for Education (below

described as the Agency) is to actively work for the fulfillment of the goals

and guidelines in the education through the Swedish school regulation, for

example the Education Act and the Curricula. This is being done by drawing

up and deciding on syllabuses, knowledge requirements, regulations and

general guidelines for the compulsory school. The Agency also administers

supports, follow-up and evaluates the school in order for all to receive an

equal education, improve the quality in the education and positive outcome

of the education.193 However, it is the organizers that have the primary

responsibility for distributing resources and organizing activities according

to the school regulations in order to have children achieving according with

the national goals for the education.194

The Agency has also an important role in providing information to the

school organizers, schools, children and to their parents or guardians. This

also includes giving information to undocumented children and their parents

or guardians but also to the municipalities/schools that shall give access to

education195 for the same group of children.

Due to the fact that the school organizers do not receive financial

compensation from the State for its costs for the undocumented children as

they do for children in general, the Government has instead regulated a

possibility for a government grant. 196 It is the Agency that administers this

and the aim for this action is to give better realization of access to education

193 Ordinance (2011:555) on Instruction for the Swedish National Agency on Education. In the regulation concerning the role of the Swedish National Agency for Education the Agency shall promote that all children shall have access to an equal education of good quality in a safe environment. It is also regulated that the Agency shall integrate the human rights perspective in its work and especially has the best interest of the child in its consideration according to the Convention on the Rights of the Child (Ordinance (2011:555) on Instruction for the Swedish National Agency on Education, paras. 1 and 13).194 Chapter 2 para. 8 Education Act (2010:800).195 Chapter 29 para. 6 Education Act.196 Förordning (2013:361) om statsbidrag för utbildning för barn som vistas i landet utan tillstånd.

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for undocumented children when giving financial compensation to the

organizers.

The below information is a list of the number of municipalities that has

applied in recent years for the government grant concerning education for

undocumented children’s. The governmental grant was 25 million SEK

every period of application.

Period of application: Number of municipalities:

Spring 2013197 94

Spring 2014198 98

Autumn 2014199 75

Spring 2015200 104

Autumn 2015201 120

During the autumn 2015 120 municipalities applied for the above stated

governmental grant. The requirements for an application is that the

organizer must have undocumented children within its area. This means at

least that 120 of totally 290 municipalities in Sweden confirm that they have

undocumented children in their area during 2015. However, you cannot

draw any conclusions from the amount the municipalities receive due to the

fact that the amount is calculated with regard to the number of asylum

seekers in the municipality, except that 80 percent of the undocumented

have previously been asylum seekers. One conclusion you can draw is that

the number of asylum seekers, and thereby the number of undocumented

children is increasing, except for during the autumn 2014.

197 The Swedish National Agency for Education, Statsbidrag för utbildning för barn som vistas i landet utan tillstånd höstterminen 2013, beslut dnr 2013:423.198 The Swedish National Agency for Education, Statsbidrag för utbildning för barn som vistas i landet utan tillstånd vårterminen 2014, beslut dnr 2014:68.199 Ibid.200 The Swedish National Agency for Education, Statsbidrag för utbildning för barn som vistas i landet utan tillstånd vårterminen 2015, beslut dnr 2015:61.201 Ibid.

52

Because of the demand from the municipalities, the Agency published in

2015 a support material for organizers and schools. The material included

information how to give access to education for undocumented children and

how to improve and secure equal and quality education for these children.202

This material is one example on how the Agency works in order to fulfil its

mandate to achieve its goal for an equal education for all children in

Sweden.

The Agency has realized that undocumented children do not have the same

access to education like children in general have. Therefore, the Agency’s

important mission is to change the current situation. Through the

government grant and information to school organizers and schools, the

Agency tries to improve the situation. As I will continue to describe in the

next chapter, it does not seem like the efforts have had enough effect on the

schools.

3.2.1.2 The Swedish School InspectorateThe mandate of the Swedish Schools Inspectorate (below described as the

Inspectorate) is to monitor and examine whether the organizer of the schools

comply with the legislation, this is mainly being done through inspections203.

In connection with this supervision and quality auditing activities, the

Inspectorate provides advice and guidance to schools what they need to

rectify on the basis of the requirements of the Swedish legislation.204

The Inspectorate can also investigate individual complaints concerning

mistreatment at school. According to the Inspectorate it has not received an

individual complaint concerning an undocumented child’s right to education

or concerning the lack of education of good quality.205 Though, that does not 202 The Swedish National Agency for Education (2015), Elever som är papperslösa – Rätt till en likvärdig utbildning.203 As the Swedish National Agency for Education shall the Inspectorate also integrate the human rights perspective in its work and especially have the best interest of the child in its consideration according to the Convention on the Rights of the Child. Ordinance (2011:556) on Instruction for the Swedish School Inspectorate, para. 7.204 Ordinance (2011:556) on Instruction for the Swedish School Inspectorate, para. 1.205 Information received by the Swedish School Inspectorate on the 16th of December 2015. If a certified teacher or preschool teacher who has behaved in an inappropriate manner or been incompetent in their work can be reported by individuals to the Inspectorate that can

53

imply that such mistreatment do not exist for this group of children. Instead,

it is probably because that they do not have the information concerning how

to make a complaint. However, if they did they would probably not want to

have the attention drawn to a child that can be in hiding. This makes these

children in an even more problematic situation, when they cannot invoke

mistreatment.

The Inspectorate has twice conducted inspections with the aim to investigate

if undocumented children have access to education according to their rights.

In 2013 the Inspectorate inspected Sweden’s 290 municipalities on the issue

of asylum seeking children and undocumented children’s right to

education.206 It was an inspection that was made without notice in advance.

The inspection had also to control if the municipalities were prepared to

provide education for undocumented children according to the amendment

that would come into force in July 2013. After the inspection the conclusion

were that the education that is accessible for asylum seeking children and

undocumented children does not meet the requirements in the Swedish

school regulation. However, the fundamental problem for the municipalities

was that they did not have any reliable data to show on how many asylum

seeking children and undocumented children that were settled within their

area of concern. The Inspectorate could also conclude that the municipalities

had not thought of or conducted any changes before the amendment would

enter into force. 207

During the Inspectorates meetings with the staff of the school in the 2013

inspection, they received information that the staff is afraid that the school

will be used as a place for the police to enforce detention or expulsion

start an investigation concerning the accusation. The Inspectorate conducts an impartial investigation and do not represent the child, the parents, the teacher, the school or the responsible authority. If the investigation shows that the school or preschool has broken the rules, the Inspectorate can demand that they rectify their shortcomings. The Swedish Schools Inspectorate can also report a certified teacher to the Teachers' Disciplinary Board (Chapter 27 paras. 4-18 Education Act (2010:800).). The Board can decide to give the teacher a warning or to revoke their teaching certification.206 The Swedish School Inspectorate (2013), Asylsökande barns rätt till utbildning – Nationell sammanställning från flygande tillsyn (dnr 402-2013:2272).207 Ibid, page 23.

54

concerning undocumented children. Lastly, it was underlined in the

Inspectorates inspection report from 2015 that the Inspection welcomed the

amendment in the Education Act.208

During 2014, after the amendment, the Inspectorate performed the second

inspection concerning the undocumented children’s right to education. 30

municipalities were inspected. The municipalities that were inspected were

the municipalities that had the highest amount of asylum seeking children

and the inspection was to evaluate if the organizers gave access to education

for undocumented children.209 The conclusions that were drawn were the

following:

- The education that is accessible to undocumented children does not

meet the requirements in the Swedish school regulation.210

- The schools find it hard to recruit suitable teachers for this group of

children. The School Inspectorate also found that the existent

teachers do not have the right competence.

- The schools important evaluation in the beginning of the education

concerning the undocumented children’s knowledge had failures.211

- Many schools cannot give undocumented children access to

education and support in their mother tongue.

- There is also an uncertainty if undocumented children receive grades

according to the school regulations. The municipalities could not

describe the schools routines when it comes to undocumented

children’s right to receive grades.

- The Inspectorate reported also that the municipalities do not have

guidelines for how the children should be received both in the

municipalities and in school.212

208 Ibid, page 23.209 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380).210 Ibid, page 5.211 1 January 2016 an amendment to the Swedish Education Act, chapter 3 para. 3d, entered into force, which gives the schools a responsibility to evaluate the knowledge of a newly arrived child within two months of his/her arrival.212 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas I landet utan tillstånd (dnr 401-2014:2380), page 35.

55

The Inspectorate also found that the municipalities must to a higher extent

clarify to the undocumented children and their parents how the school

intends to strive for making the school feel as safe as possible for the

undocumented children in order to make them attend the education.213 The

school must be a sanctuary for the undocumented children that the

authorities cannot use in its search for persons that shall be detained or

expelled.214 The Inspectorate did not study in-depth how the schools

evaluated the children’s knowledge when arriving in a Swedish school.

However, it was common in several of the inspected schools that asylum

seeking children were placed in preparation classes, previously described as

special education classes. According to the Inspectorate, this is not a routine

that is suitable. The schools should instead make individual evaluations

concerning each and every child and thereafter make necessary actions for

the child.215 Though this concerned asylum seeking children I assume that

this also were practice when it comes to undocumented children.

The Inspectorates mandate, as above described, is to monitor and examine

whether the organizer of the schools comply with the legislation, which has

been done when it comes to the undocumented children’s right to education.

The overall conclusion also for the Inspectorate is unfortunately that

undocumented children do not have access to the education, despite their

legal right in the Education Act. However, the Inspectorates have fulfilled

its mandate when they have monitored and examined the question

concerning undocumented children’s right to education. Their reports are

also always being given to the Government in order for the State to react

and take necessary actions when the legislation is not efficient.

3.2.1.3 The Swedish MunicipalitiesThe mandate for the municipality, as an organizer of education for all

children within its area, is that it has the responsibility to guarantee that the

213 Ibid, page 5.214 Betänkande 2012/13:UbU12, Utbildning för barn som vistas i landet utan tillstånd, page 6.215 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas I landet utan tillstånd (dnr 401-2014:2380), page 26.

56

education is being performed in accordance with the school legislation.216

All children mean that the municipality also is responsible for the

undocumented children within its area. As above described, according to the

Education Act a child that is not nationally registered in Sweden shall be

considered as settled in the municipality where he or she is living or

temporarily reside.217 Therefore it is the municipalities’ prime concern to

realize how many undocumented children that are residing within its area.

According to investigations that have been made by the Inspectorate218 and

Stockholm’s City Mission219 the municipalities do not have sufficient

routines to establish information concerning the number of undocumented

children residing in the municipalities. It has also come to light that

municipalities do not have routines for spreading information about

undocumented children’s right to education within the area of its concern.220

In 2013 the Inspectorate asked all the municipalities in Sweden the

following question: Does the municipality give access to education for

undocumented children? 221 Yes

36 %

The municipality does not know if undocumented children are within its area but would if they wanted education.

40 %

Is not relevant. The municipality has not needed to make such a decision.

18 %

No

4 %

Do not know.

2 %

216 Chapter 2 paragraphs 2 and 8 Education Act (2010:800).217 Chapter 29 para. 6 Education Act.218 The Swedish School Inspectorate (2013), Asylsökande barns rätt till utbildning – Nationell sammanställning från flygande tillsyn (dnr 402-2013:2272), page 23, The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 13. 219 Stockholm City Mission (2014), Stockholms Stadsmissions Barn- och Ungdomsrapport 2014, Tema: Barn till papperslösa, pages 27-28.220 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 15. 221 The Swedish School Inspectorate (2013), The Swedish School Inspectorate (2013), Asylsökande barns rätt till utbildning – Nationell sammanställning från flygande tillsyn (dnr 402-2013:2272), page 19.

57

The responds to the above question indicate, like other reports also have

shown, that the biggest concern for the municipalities is that they do not

have enough knowledge concerning how to come in contact with this group

of children. Further on, 18 percent of the municipalities that have answered

this question have a total misunderstanding as many undocumented children

live in hiding and therefore have not come to the attention of the authorities.

If read together with the group that have come to the conclusion that they do

not have undocumented children within its area, 58 percent do not act in

accordance with the school regulations. This is severe and one of the

fundamental problems. The next question would be to describe its routines

for coming in contact with this group. Without this answer it is hard to draw

any conclusions concerning if the municipality for example give access to

education for all undocumented children within its area or only the children

that have disclosed themselves.

The fact that the undocumented children often are in hiding does not mean

that the municipality’s responsibility to provide access to education

diminishes. When confirmed that the undocumented children are in hiding

the responsibility for the municipalities then get enhanced. It is therefore

important to find ways to reach out with the information, for example

through organizations that work with this group of people. The Inspectorate

found out during the investigation in 2014 that of 30 municipalities only

half of them could give example to the Inspectorate on how they inform

asylum seekers information regarding the right to education. It was not

either common that the municipalities had information on its website

concerning the right to education for asylum seeking children.222

The conclusion that can be drawn from the above information indicate that

the municipalities must first of all be much more active, including pro-

active, when it comes to reaching out to the undocumented children, its

parents and/or guardians. Without the connection between the 222 The Swedish School Inspectorate (2015), Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 21.

58

undocumented children and the municipality children will never enjoy their

right to education. My evaluation clearly shows that there is a large lack of

knowledge within the municipalities on how to come in contact with this

group. This is one of the main problems that hinder undocumented children

to obtain their right to education in practice.

3.3 The Swedish Police Impact on Undocumented Children’s Right to Education in Practice

In the previous chapter, I evaluated if the Education Act, through the school

authorities and municipalities give undocumented children the right to

education in practice. In this chapter I will do the same evaluation, but

evaluate the work of the police.

The mandate of the Swedish Police is to reduce crime and increase public

safety. Through crime prevention, the police work is to ensure that fewer

crimes are committed. The Police have also the right to detain or expel

persons that stay illegally in Sweden. Persons who are not citizens of

Sweden or an EU/EEA country are required to obtain a permit to stay in

Sweden. Staying in Sweden without such a permit is to stay in the country

illegally. However, if someone is supposed to be detained or expelled from

Sweden it has to be done according with Swedish laws and regulations.

In the Swedish Police Agency’s regulations and general advice (RPSFS) are

regulated that a child should not be searched or collected in or in direct

adherence to the school where he or she is a pupil. 223 It is required for the

police to have a strong case if a child shall be collected in school by the

police. According to the Swedish Police Act (1984:387) a police officer

must act in accordance with the goal/aim of the act.224 The action need to

follow the principles of need, proportion and consideration. The best interest

of the Child is also underlined as essential to follow according the Swedish 223 Chapter 5 para. 2 Rikspolisstyrelsens föreskrifter och allmänna råd (RPSFS 2014:8) om verkställighet av beslut om avvisning och utvisning.224 Para. 8 Police Act (1984:387).

59

National Police Agency.225 However, it is not prohibited for the police to

search or collect an undocumented child in or in direct adherence to the

school where he or she is a pupil. This has been emphasized as a large

problem in several reports.226 It affects the undocumented children’s

possibility in having access to the education when they risk being collected

and detained by the police when they go to and from school and while in

school.

Today, there is no prohibition for the police to search for children in school

regardless of that:

- one of the biggest fears for undocumented children is that the police

might collect them in school, and

- the school is of crucial importance for these children and for their

psychological well-being.227

It is also a fact that the police have collected undocumented children in

school despite the Swedish National Police Agency’s own regulations and

general advice that recommends the police not to act in such a way.228 The

National Agency for Education has also received phone calls from school

principals asking questions concerning the right of the police to investigate

if there are undocumented children in school. In addition, the police have

visited the school principal with questions concerning the whereabouts of

undocumented children.229

225 Prop. 2012/13:58, Utbildning för barn som vistas i landet utan tillstånd, page 12 and Lagrådsremiss Utbildning för barn som vistas i landet utan tillstånd, page 30.226 SOU 2007:34, Skolgång för barn som ska utvisas eller avvisas, pages 134-136, Stockholms Stadsmissions Barn- och ungdomsrapport 2014, Tema: Barn till papperslösa, pages 12-13 and Rädda Barnen, Jag vill bara landa, page 78. 227 Save the Children, Barn utan papper – Jag vill bara landa, page 78, The Swedish National School Agency, Elever som är papperslösa – Rätt till en likvärdig utbildning (Stödmaterial), page 15, the Swedish School Inspectorate, Riktad tillsyn, Utbildning för asylsökande barn och barn som vistas i landet utan tillstånd (dnr 401-2014:2380), page 11 and SOU 2007:34 Skolgång för barn som ska avvisas eller utvisas, page 114.. 228 The Swedish police have in two cases collected undocumented children in school in contrary with the Swedish National Police Agency’s own regulations and general advice, Stockholm City Misson (2014), page 25.229 The information comes from the thesis authors own received phone calls with school principals.

60

In the Education Act’s preparatory work concerning the amendment that

gave the undocumented children a legal right to education, the Swedish

National Police Agency expressed that the police was dubious to the fact

that the undocumented children would attend school in fear of being

discovered. The Swedish National Police Agency also thought that it was a

contradiction that persons stay in the country illegally and at the same time

they also have the right to education. 230 The Government found that the

present legislation and practice was enough and therefore it was not

necessary to prohibit the police work when it came to search or collect

undocumented children in adherence to or from school. However, if the

work methods of the police limit undocumented children’s access to

education the Government would consider if further regulation is needed.231

Not only children’s views gave the answer that this was not an efficient

regulation,232 authorities and non-governmental organizations have

underlined that a prohibition was needed if the right to education would be

reachable.233

Several bodies that have considered the proposed legislation concerning

undocumented children’s right to education have emphasized that the work

of the police should be limited. As mentioned above, Swedish authorities

and non-governmental organizations also considers that there should be a

prohibition for the police to search or collect undocumented children in or in

direct adherence to the school, otherwise is there a risk that these children

will not use their right to education.234 Unclear national legislation causes

contradictory policies and rules to emerge in practice. The threat of being

detained or expelled is a continual and real concern for undocumented

children and their parents.235

230 Prop. 2012/13:58, Utbildning för barn som vistas i landet utan tillstånd, page 12. 231 Ibid, page 32. 232 The Swedish National School Agency, Elever som är papperslösa – Rätt till en likvärdig utbildning (Stödmaterial), page 12, Stockholm City Mission, Stockholms Stadsmissions Årsrapport 2014, Tema: Barn till papperslösa, page 18.233 Prop. 2012/15:58, Utbildning för barn som vistas i landet utan tillstånd, page 32.234 Prop. 2012/13:58, Utbildning för barn som vistas i landet utan tillstånd, page 32.235 PICUM (2013), Children First and Foremost, page 71.

61

The conclusion that can be drawn when looking upon the impact of the

police actions concerning undocumented children’s right to education in

practice, is that the fundamental problem is to give this group of children a

safe school environment. As long as these children have to fear that the

police might come and collect them to and from and while in school it will

affect the children’s access to school. This is therefore the second main

problem that hinders undocumented children to obtain their right to

education in practice.

3.4 The Four Principles of the CRC and the Right to Education for Undocumented Children

As described in chapter 2.4, the reason for using the four principles of the

Convention on the Rights of the Child is to indicate the importance of their

enjoyment and effect on other human rights of the child, such as the right to

education. In the Swedish Education Act, the four principles are recognized.

If the child cannot obtain the four principle rights of the Convention it will

risk that children’s human rights will not be achievable in practice, it will

only be rights on paper.

In this chapter, I will evaluate in two steps if undocumented children have

the right to education in practice.

- Firstly, by looking at the outcome of the right to education for

undocumented children through the four principles of the

Convention, and

- secondly, in what way Sweden is in accordance with or in violation

of these rights.

The Committee on the Rights of the Child proposes that States Parties, if

they have not already done so, should review the machinery of government

from the perspective of implementation of the Convention and in particular

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of the four articles identified as providing general principles.236 You can find

that the four general principles are recognised in the Swedish Education Act

(see below).

- Non-discrimination (Chapter 1 para. 9 Education Act),

- Best interest of the child (Chapter 1 para. 9-10 Education Act),

- Right to development (Chapter 3 para. 3 Education Act), and

- Right to express the views of the child (Chapter 4 paras. 9-13

Education Act).

3.4.1 Non-discrimination (Article 2)As mentioned previously, since July 2013 undocumented children have the

legal right to education in Sweden. However, does this mean that they are

not discriminated when you compare their right to education with children

in general? The Swedish National Agency of Education, the Swedish School

Inspectorate as well as Save the Children Sweden and Stockholm City

Mission have found that undocumented children, after July 2013, still do not

have access to education in practice. The Committee on the Rights of the

Child has pointed out that it is not enough to have domestic legislation that

protects the right to education if it does not give the children education in

practice.

Have the non-discrimination principle given any effect for undocumented

children’s enjoyment of right to education in Sweden? The answer must

unfortunately be negative because too many of these children still do not

have the possibility to enjoy the right to education in practice. As I made

clear throughout chapter 3, the number of undocumented children that have

access to education in practice are dismal and it is clear that special

measures are needed.

The undocumented children that do have access to education also seem to be

discriminated when it comes to the actual education. As I previous wrote,

236 CRC General Comment No. 5 (2003), General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44 para. 6), para. 38.

63

the Swedish School Inspectorate made clear through its inspections that the

education this group of children have access to does not meet the

requirements in the Swedish school regulation. When comparing them with

children in general, they are being discriminated and the undocumented

children are not given an equal education. The conclusion is therefore that

the right to education primarily exist on paper because Sweden has not been

able to protect these children from discrimination.

Despite Sweden’s States obligations, the State has not been able to

undertaken appropriate measures of the Convention in order to fulfil the

undocumented children’s right to non-discrimination. Sweden is therefore

violating Article 2 of the Convention on the Rights of the Child.

3.4.2 The Best Interest of the Child (Article 3 (1))

Earlier in this thesis, I described that the Committee on the Rights of the

Child highlights the importance of ensuring the best interests of the child in

order to fulfil other rights in the Convention. When taking the best interests

of a child into consideration, the obligation of the State is to ensure the child

protection and care as it is necessary for his/her well-being. However, the

actions from the municipalities cannot have had the best interest of the child

in mind when they are not trying harder to reach out to the undocumented

children within its area. That is quite clear when many municipalities not

even have information concerning these children’s right to education on

their website.

The Swedish Police Agency’s regulations and general advice that regulate

that a child should not be searched or collected in or in direct adherence to

the school where he or she is a pupil, is not being followed. Several cases

have shown that undocumented children are being searched for in the

school. Therefore, it is evident that the police do not work in accordance

with their own regulations and definitely not looking at the best interest of

the child, despite the fact that undocumented children in several reports

64

expressed that the police possibility to collect children while in school limit

their possibility to attend the education. When it comes to this group of

children it is even more important to guard the best interest of the child

when they belong to one of the most vulnerable groups in Sweden.

Sweden have not been able to undertake such measures to the maximum

extent of their available resources which has caused that the State violates

the Convention on the Rights of the Child concerning the best interest of the

child. It is clear that, when it comes to the undocumented children, it has not

received enough attention, especially when it should be obvious for the

Government that the police regulation and general advice limits

undocumented children’s access to education.

3.4.3 The Right to Life, Survival and Development (Article 6)

Concerning Article 6 of the Convention on the Rights of the Child, it is the

words “States Parties shall ensure to the maximum extent possible …

development of the child” in the article that is central for undocumented

children’s right to education. As I explained in chapter 2, the word

“development” shall be interpreted in its broadest sense. That is, the child’s

physical, mental, spiritual, moral, psychological and social development.

Previously explained, it is the municipalities that are responsible for the

undocumented children’s education and they should aim at achieving the

optimal development for all children, including the undocumented. I can

unfortunately not come to the conclusion that Article 6 of the Convention

has been taken into consideration when not even being able to give

education in these children’s mother tongue. As well as placing them in

special education classes, which cause unnecessary segregation and deny

them the opportunity to develop in an ordinary class with extra support.

According to the reports from the Swedish School Inspectorate it does not

seem like undocumented children also have the possibility to develop to

their fullest. This has been emphasized by the Committee on the Rights of

65

the Child as vital for the child’s possibility to receive an introduction to the

society.

In sum, when comparing the current situation for these children with the

right to develop principle, Sweden does not live up to its obligations and

also in this case there is a violation of the Convention.

3.4.4 The Respect of the Views of the Child (Article 12)

In several reports it has been realized that undocumented children fear being

found by the police if they attend the education in school. This generate that

many of these children do not go to school despite their legal right. When

the right to education for undocumented children was discussed, the

Government found the Police Authorities Regulations (RPSFS) to be

enough protection for the child (“a child should not be searched or collected

in or in direct adherence to the school”). However, in this case the

Government cannot have regarded the respect of the views of the child. As

described in chapter 3.3, the actual views of the child were clear,

undocumented children fear the police coming to school and the school

environment does not feel safe enough. Though, this is a hard group to

reach, when the children do not want to be discovered by the authorities, it

generates an even a bigger responsibility to apply the best interest of the

child. But in this case the Government cannot have regarded the respect of

the views of the child, and so the principle has had no effect in practice and

there is a violation of the Convention.

3.5 The A-4 Scheme and the Right to Education for Undocumented children

As I have done under chapter 3.4 with the four fundamental principles, I

will do an evaluation using the A-4 scheme and through the 4 A’s I will

control if undocumented children have a right to education in practice. The

analysis of the current situation is done by using the A’s two (availability-

accessibility) by two (acceptability-adaptability). Thereafter I have

66

evaluated whether Sweden’s actions are to be considered as appropriate

legislative and administrative measures when it comes to fulfilling its

obligations for undocumented children’s right to education in practice

according to the Articles 28 and 29 of the Convention on the Rights of the

Child.

3.5.1 Availability and AccessibilityArticle 28 in the Convention on the Rights of the Child regulates the

importance of both availability and accessibility to education. The first two

A’s in the A-4 scheme describes what is necessary for giving undocumented

children the possibility to physically come to school. Firstly, the State has to

ensure that there are enough schools, including for the undocumented.

Secondly, these children and parents or guardians need to have access to

information concerning the children’s right to education and how to obtain

it.

When it comes to give the undocumented children availability to education

in Sweden the problem is not that there are an inadequate number of

schools. The problem, which gives the same effect as if there were not

enough schools, is instead that these children might not even know that they

have the right to attend the education. The lack of information cause a

denial of the children’s right to education.

It is evident that the Swedish Government and Riksdag have fulfilled its

obligations in the Convention on the Rights of the Child when it comes to

the right to education, if only looking at the amendment in the Swedish

Education Act. Though, does this give these children the right to education

in practice? The answer is unfortunately negative.

Many Swedish municipalities cannot show efforts in reaching out to this

group. The explanation is that they are not aware of the number of

undocumented children within their area. But if they were, the

municipalities would give access to education. This is a systematic error that

67

could easily be addressed if the municipalities took their responsibility, in

accordance with all children’s right to education, and reach out to this group

of individuals.

As I have underlined throughout this thesis several reports, national as well

as international, have explained that undocumented children fear for being

found by the police while they are in school or in direct adherence to school.

If they are being found they risk being detained and expelled from the

country. The risk these children would take if attending the education is so

severe that they do not come to school at all. Therefore, the legal change in

the Swedish Education Act has had no effect in practice but only on paper.

I have described the current situation for the undocumented children and the

aggravating circumstances to receive availability and accessibility to

education in Sweden in order to be able to come to school. Their possibility

is dismal. The Convention on the Rights of the Child demands that the right

to education shall be available and accessible for all children. The right

itself has to be evaluated through actual practice and not only looking at the

legislation.

This concludes that Sweden violates its obligations when it comes to

undertake appropriate legislative and administrative measures for the

implementation of the rights in Article 28. Undocumented children have to

face too many obstacles in order to physically be able to come to school,

which result in a denial of the right to education.

3.5.2 Acceptability and AdaptabilityArticle 29 in the Convention regulates the need for a certain acceptability

and adaptability in the education. The last two A’s are therefore important

when undocumented children have come to school and receive education.

The demand for development is a central requirement in the right to

education. Therefore firstly, there has to be a certain quality in the

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education. Secondly, the education has to be able to adapt to each and every

child.

When it comes to acceptability and adaptability, undocumented children’s

education has, as described earlier in the thesis, weaknesses in several areas.

According to the Swedish School Inspectorate, the education’s quality does

not hold the same level as for children in general and therefore are the

undocumented not being given an equal education. Undocumented children

tend not to be given an education in all subjects and often in special

education classes, which will not give these children the same chance to

develop as children in general. There is also a lack of teachers being able to

teach in languages the undocumented children understand, which generates

that undocumented children are not given the support in their mother tongue

or mother tongue education, which is essential for a child’s development.

Therefore, the teaching has not adapted to these children. When it comes to

education, there is not one education for all. Instead, each and every child

shall receive an education that has adapted to the child’s needs and

possibilities. For undocumented children, that come from many different

countries, with different languages and have different school experience, it

is especially important to evaluate what knowledge these children have and

thereafter adjust the teaching and give the support needed. The school must

do the evaluation early after the child’s entry into school. If the State cannot

arrange an education that is child-centered, the child is denied equal

opportunities. When there is a failure in adapting to every child, there is a

risk not to develop to its fullest. This is not only negative for the child, but

also for the society.

The final conclusion for this thesis is unfortunately that Sweden has not

being able to create possibilities for undocumented children to obtain a

quality education that is equal to what children in general receive. Sweden

therefore fails in undertaking all appropriate legislative and administrative

measures in order to give undocumented children the right to education in

practice, which is a violation of Article 29 of the Convention.

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4 Obstacles and solutions

4.1 Education for All in PracticeThe undocumented children are living in a difficult situation, which the

Committee on the Rights of the Child as well as the Swedish National

Agency for Education and the Swedish School Inspectorate have

underlined. When I have looked into the aims with education in Article 29

of the Convention on the Rights of the Child and the Committees on the

Right of the Child’s General Comments and Concluding Observations, it is

clear that the right to education is a right that includes the undocumented

children. The Convention has wordings like “all children/every child”. Not

a word implies that there are exceptions to the rule.

The Swedish Education Act is more legible after the Education Acts

amendment. It clearly states that a person staying in the country illegally

shall also be recognized as settled in Sweden. When being recognized as

settled the child is entitled to education according. Despite their legal right,

it has only stayed as a right on paper. According to the A-4 scheme the right

to education will only be fully enjoyable for a child when it is available,

accessible, acceptable and adaptable. In Sweden there are severe

shortcomings when it comes to undocumented children’s right to education.

This thesis has focused upon the undocumented children’s right to education

in practice and I will below present my recommendations. According to me,

the main solutions are:

- Make the Convention on the Rights of the Child Swedish Law,

- Change the Police Act/legislation,

- Strengthen the right to information for undocumented children, and

- Provide the child’s mother tongue education on distance.

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4.2 The CRC as Swedish LawAs written in chapter 3.1, Sweden is a dualistic state that needs to transform

ratified Conventions into Swedish legislation before the regulations can be

applicable by the courts and authorities. Though, it is not regulated in any

law that Sweden has to transform international treaties. This is only based

on tradition/practice.

For the children living in Sweden it is important to emphasize their human

rights and therefore transform the Convention on the Rights of the Child.

There are Swedish courts and authorities that have referred to the rights

protected in the Convention but there are still courts and authorities that

express that they cannot do that due to that the Convention is not considered

as Swedish law237. This is of course problematic and the risk is that courts

and authorities take different decisions concerning the application of the

rights in the Convention, which generate unequally practice.

Despite the fact that Sweden has transformed the regulations in the

Convention, the best interest of the undocumented child, for example, has

not been considered when it comes to giving access to education in practice.

Another aspect is that when there has been a conflict between the child’s

rights and Swedish regulations, such as the Police Act and the Swedish

Police Authority’s regulations, the Swedish Law rules over the human rights

of the Convention. If the Convention would be considered as Swedish law

this could be addressed.

As earlier stated, a democratic State as Sweden should be able to

incorporate the Convention on the Rights of the Child when it only protects

fundamental human rights for children. Preparatory works explain that

Sweden has norm harmony when it comes to regulations of the Convention

and the State changes the legislation when necessary. However,

237 UNICEF, Barnkonventionens status, En utvärdering av för- och nackdelar med barnkonventionen som svensk lag, page 19.

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incorporation would generate that Sweden give the regulations of the

Convention a higher judicial value and underline that Sweden finds

children’s human rights important to respect and protect. Also, all children

in Sweden, included the undocumented, would receive a higher status

within the Swedish courts and authorities, if their human rights would be

fully respected by the State. As earlier described, the Swedish Prime

Minister proclaimed to work for to make the Convention on the Rights of

the Child Swedish law because it would be in the best interest of the child. I

would applaud a positive decision from the Government and Swedish

Riksdag in 2016. Under the Convention the State have an obligation to

undertake all appropriate legislative measures. An action, such as

transforming the Convention into Swedish law would clearly indicate that

Sweden fulfill its legislative obligations and highlight the importance of

children’s human rights. Sweden must give legislative obligations of the

Convention immediate attention and it is clear that today’s legislation is not

efficient. Therefore, Sweden cannot postpone this decision concerning the

incorporation of the Convention. Though, it is important to emphasize, it

cannot only be rights on paper, it has to give human rights in practice. To

conclude, it is more likely that the rights in the Convention have effect when

considered as Swedish Law instead of international agreements.

4.3 Change the Police LegislationUndocumented children are in the state unlawfully and therefore there is a

constant threat of being found and sent back to the country of origin.

Therefore they have to act in a way that does not reveal them. Their lives

have to be lived in hiding, irrespective of their legal right to education.

Undocumented children need to feel that they can attend school without

having to fear the police. Not only that these children might be found when

going to and from school, he or she might also lead the police to the home

of the child’s family, which causes enormous pressure on the child. It

cannot be in the best interest of the child to cause such a stress upon him or

her. If undocumented children shall be able to feel secure and not only to

enjoy their right to education but also be able to actually learn, it must be

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prohibited for the police to search for or collect undocumented children in

or in direct adherence to the school. I have mentioned that this group of

children tends to move more often than children in general. This irregularity

is something that maybe will be hard to overcome but with making the

school environment safer for the undocumented children in relation to being

found, the risk for drop-outs will in all probability decrease.

As described previously, all four A’s in the A-4 scheme have to be fulfilled

for the child to be able to obtain the right to education. One of the four

cornerstones is that the undocumented child must reach accessibility to

education. The education is not accessible for the undocumented child if

they have to fear the police, the threat of being sent back to the country of

origin is too dissuasive. Without a prohibition, all other actions will not

have an effect for the undocumented child’s possibility to obtain his or her

right to education.

The very low estimated number in 2008 of 2 000 – 3 000 undocumented

children in Sweden needs to be updated by the Government. Of that number

of undocumented children in 2008 only 450 had actual access to education.

There is likely a much higher number than 2 000 - 3000 since the number of

asylum seekers have rapidly increased, especially during 2014 and 2015.

The question still is: How come so few undocumented children have access

to education when the number of children is probably much higher? The

prime reason is undoubtedly the fear of the police searching for them in

school. De facto, the police are not prohibited to search for undocumented

children in or in direct adherence to the school. The Police Agency says that

the police regulations and general advice is enough protection for these

children, and that the police do not search for them in school. However,

according to the authorities and human rights organizations it is known that

the police have collected undocumented children in school. This is daunting

enough for these children and their parents or guardians to choose safety

before education. The already vulnerable children, gets more vulnerable

when they are excluded from the society. This is not acceptable and

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therefore should the Riksdag through an amendment in the Police Act

prohibit the police to search for undocumented children in or in direct

adherence to the school.

Just to be clear, the police should of course come to school if there is a risk

that children will be harmed or harm others. However, when the police

come to school for the reason to search for undocumented children, the only

harm that is being made is by the police.

I have earlier in the thesis emphasized that today’s regulation in the Swedish

Police Authority’s regulations and general advice is exactly that, only a

general advice. When the legislator came to the conclusion that the Police

authority’s regulations and general advice was an effective regulation for

the undocumented children’s well-being and right to education, they

obviously assumed that the police would follow its own advice. When it

now has been realized that the police do not act in accordance with the

Swedish Police Authority’s own regulation, the best action for the

protection of the undocumented children’s right to education is by law,

which can be based on the rights according to the Convention on the Rights

of the Child. The children have to be able to enjoy their right to education in

practice.

The argumentation for changing the police legislation can be based on the

same grounds as for making the Convention into Swedish Law. Sweden is

obligated to undertake all appropriate legislative measures in order to obtain

undocumented children’s right to education. I have described the police

regulation as one of the fundamental problems that affects the

undocumented children negatively when it comes to access to education. It

is a clear violation of the Convention that the Swedish police regulations

limit undocumented children’s access to education. Therefore, Sweden has

in order to fulfill the right to education for the undocumented children, an

opportunity to overcome one of the obstacles and achieve education as a

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right in practice, through a prohibition for the police to search for

undocumented children in or in direct adherence to school.

4.4 Strengthen the Right to Information for Undocumented Children

Without giving the undocumented information about their human rights,

such as the right to education, it will not be available to this group. It is not

regulated that the municipalities have a responsibility to inform asylum

seekers about benefits like undocumented children’s right to education,

however they must according to the Education Act inform all children and

their parents or guardians, including the undocumented, about available

schools within the municipality. The Swedish School Inspectorate report

that many municipalities do not have sufficient routines when it comes to

giving undocumented information about children’s right to education.

Undocumented children do not have a compulsory school attendance, and

the municipalities do not have to be proactive and search for undocumented

children to provide education. If the municipalities were obligated to be

active in giving undocumented children information of their right to

education and how to obtain it, it would generate that more undocumented

children and their parents or guardians would be reached by the information

and increase the number of undocumented children in Swedish schools.

To be able to spread the information, the municipalities could also cooperate

with organizations that come in contact with asylum seekers and

undocumented persons. Through these organizations network the

information from the municipalities concerning the undocumented

children’s right to education could reach this group that might be afraid of

contacting the authorities directly. Another possibility to reach out to this

group is to have information concerning undocumented children’s right to

education on the municipality’s website, preferably in the most common

languages of the asylum seeking persons. The municipality’s obligation

must be to make information accessible to everyone residing within its area,

including undocumented persons, as far as possible.

76

As described the Swedish School Inspectorate has discovered that half of

the inspected municipalities have not been able to explain how they inform

undocumented children of their right to education. The fact is that many

municipalities do not even have information concerning this right on their

website. Reaching out to this group through social medias and information

on the municipalities websites would be an effective way to start with.

Today it does not exist a regulation concerning the municipalities obligation

to inform about the undocumented children’s right to education within the

municipalities. My suggestion is to make an amendment in chapter 29 of the

Education Act with an obligation for the organizers of the schools to have

routines for how to inform asylum seekers and undocumented children’s

within its area of concern about undocumented children’s right to education.

The routines could for example describe how the municipalities cooperate

with the Swedish Migration Agency to receive updated information

concerning the Migration Agency’s decisions. The municipalities

cooperation with relevant organizations could also be included in the

routines. That would also probably give the municipalities a better chance to

obtain information concerning the number of undocumented children

residing in the municipalities and a better chance to be prepared to give

access to this group of children. This suggestion is in accordance with the

Convention on the right of the Child. For example, it is in the best interest of

the child if he or she has information concerning his or her right to

education. This gives also Sweden, as a State party of the Convention, an

obligation to act in order to obtain the child’s right to education. It is

necessary to have information concerning his or her legal right to be able to

demand it.

4.5 Support on Distance in the Child’s Mother Tongue

To be able to uphold the right to education for undocumented children there

have to be schools that are prepared to educate this group of children. It has

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to be a sufficient number of schools, which might be a arising problem in

this case. With the increasing number of migrants that have come to Sweden

during the last years, there is a problem with finding enough number of

schools with professional teachers that have the possibility to educate

undocumented children in a language they understand. The education for the

undocumented children will still not be accessible or acceptable according

to the A4-scheme if they cannot be educated in a language they understand.

The Swedish School Inspectorate has, as mentioned under chapter 3,

concluded that the education that the undocumented children have access to

do not hold the high quality as it should. One of the reasons is lack of

teachers that can educate in the children’s mother tongue. One solution to

this problem could be to encouraging the development of distance education

when it comes to support in the child’s mother tongue. I do not find distance

education to be the best form of teaching. However, today there are not

enough teachers that are trained to teach children in their mother tongue.

This solution could be for a period of time until Swedish municipalities

have access to teachers with competence to educate children in their mother

tongue. The Government has to, in meantime, work for achieving more

trained teachers.

The education that the undocumented children receive shall hold a high

quality but without the support in the children’s mother tongue that will be

impossible to achieve and their right to education will still not be obtained.

For example, teaching in the child’s mother tongue during the introductory

stage of the education would require recruitment and training of teachers as

well as the production of new learning materials. Except the language

barriers, the education for many undocumented children has an

unacceptably low quality. Today the education does not give an acceptable

output, which can cause a risk for drop-outs. The Convention on the Rights

of the Child encourages State parties to take measures to reduce drop-out

rates. It is in the best interest for everyone to give undocumented children an

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education with substance and that is useable in the future in Sweden or

elsewhere, but it requires active measures.

79

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