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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 259Committee has expressly stated that “the introduction or failure to repeallegislation which discriminates against individuals or groups, onany of the prohibited grounds, in the field of education [and] the failureto take measures which address de facto educational discrimination” 1078constitute violations of Article 13 ICESCR.Obligations of non-discrimination and to implement policies aimed atavoiding discrimination also arise from Article 5(e)(v) ICERD. AlthoughArticle 5 refers expressly to discrimination on grounds of national origin,but not of nationality, the CERD has clarified that, under Article 5,States must “[e]nsure that public educational institutions are open tonon-citizens and children of undocumented immigrants residing in theterritory of a State Party; [and] [a]void segregated schooling and differentstandards of treatment being applied to non-citizens on groundsof race, colour, descent, and national or ethnic origin in elementary andsecondary school and with respect to access to higher education”. 1079Regarding asylum-seekers and refugees, the Geneva RefugeeConvention stipulates that, “Contracting States shall accord to refugeesthe same treatment as is accorded to nationals with respect to elementaryeducation”. 1080 In addition, they “shall accord to refugees treatmentas favourable as possible, and, in any event, not less favourablethan that accorded to aliens generally in the same circumstances, withrespect to education other than elementary education and, in particular,as regards access to studies, the recognition of foreign school certificates,diplomas and degrees, the remission of fees and charges and theaward of scholarships.” 1081In relation to unaccompanied and separated children, the Committeeon the Rights of the Child has made clear that “States should ensurethat access to education is maintained during all phases of the displacementcycle. Every unaccompanied and separated child, irrespective ofstatus, shall have full access to education in the country that they haveentered in line with articles 28, 29 (1) (c), 30 and 32 of the Conventionand the general principles developed by the Committee. Such accessshould be granted without discrimination and in particular, separatedand unaccompanied girls shall have equal access to formal and informal1078 Ibid., para. 59.1079 CERD, General Recommendation No. 30, op. cit., fn. 18, paras. 30–31.1080 Article 22.1, Geneva Refugee Convention. The UNHCR ExCo affirmed the right to educationof refugee children is a fundamental right and “called upon States, individually and collectively,to intensify their efforts [. . .] to ensure that all refugee children benefit from primaryeducation of a satisfactory quality, that respects their cultural identity and is oriented towardsan understanding of the country of asylum”, Conclusion No. 47 (XXXVIII) on RefugeeChildren, ExCom, UNHCR, 38 th session, 1987, para. (o). See also, Conclusion No. 84, UNHCR,op. cit., fn. 214, para. (b)(v).1081 Article 22.2, ibid.