An analysis of the extent to which children are benefitting from the right to education under the European Convention on Human Rights regardless of their immigration status

Abstract

UNESCO's Director-General has commented that, '[f]rom better health to increased wealth, education is the catalyst of a better future for millions of children, youth and adults.’ Education is a fundamental human right, the fulfilment of which is necessary in the realisation of all other rights. The European Convention on Human Rights (ECHR) is a revolutionary instrument in the protection of the right to education on a regional level. This thesis seeks to explore whether migrant children are effectively benefitting from their right to an education as embodied by Article 2 Protocol 1 to the ECHR. After delving into a brief overview of the right as protected by various instruments, state obligations in the full realisation of the right to education are outlined. Underlying states’ responsibilities in the implementation of the right is the principle of non-discrimination, yet discriminatory practices constitute a major barrier in the fulfilment of the right. In fact, alleged violations of Article 2 Protocol 1 are often examined by the Court in conjunction with alleged violations of Article 14 of the ECHR prohibiting discrimination. European case law is used to illustrate the Court’s outlook on educational inequalities which occur even in countries where educational opportunities are generally widely available. Policies and strategies endorsed by Malta, as well as other European States are highlighted. While noting the commendable practices undertaken, areas for improvement are also examined. This thesis concludes by stressing that children should be afforded equal educational opportunities regardless of any determining characteristic such as their immigration status. While sufficient legal protections are in place, more enforcement is required in ensuring the equal implementation of the right to education in practice, both locally and on a European level.