Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 261
ucational establishments, any State doing so will be under an obligation
to afford effective access to them [. . .]. Put differently, access to
educational institutions existing at a given time is an inherent part of
the right set out in the first sentence of Article 2 of Protocol No. 1”. 1089
The Court ruled that State authorities had breached the prohibition on
discrimination in relation to the right to education (in this case, secondary
education) under Article 2, Protocol 1 read together with Article 14
ECHR, because the applicants had to pay school fees only because of
their nationality and immigration status. The Court found that, although
it could be legitimate for the State to curtail the use by short‐term and
undocumented migrants of “resource-hungry” public services, by differentiating
between categories of migrants in allowing access to such
services, 1090 “unlike some other public services [. . .], education is a
right that enjoys direct protection under the Convention. It is expressly
enshrined in Article 2 of Protocol No. 1 to the Convention [. . .]. It is also
a very particular type of public service, which not only directly benefits
those using it but also serves broader societal functions.” 1091 Given the
importance of this right in the Convention system, the European Court
held that a stricter scrutiny applies in the assessment of the proportionality
of the discrimination based on “nationality” or “immigration status”
than when the enjoyment of other social benefits are at stake (see, for
a comparison with the rights to housing, section II.1.c.ii).
1089 Ponomaryovi v. Bulgaria, ECtHR, Application No. 5335/05, Judgment of 21 June 2011, para. 49.
1090 Ibid., para. 54.
1091 Ibid., para. 55.