Access to compulsory education for migrant children

Local authorities have a duty to provide suitable full-time education for all children of compulsory school age resident in their area. The education must be appropriate to the child’s age, ability, and any special educational needs they may have, regardless of their immigration status. A parent has a matching duty to make sure that their child is educated if they are of compulsory school age, either by regular attendance at school, or by alternative provision. Being undocumented or having a ‘no recourse to public funds’ (NRPF) condition on a visa does not prevent a child from accessing education. Education is not a ‘public fund’ as set out in the immigration rules.

Local authorities must offer free school places in accordance with their published admissions arrangements, and they must ensure that there is no unreasonable delay in securing school admission for any child. This includes provision for children who are temporarily living in an authority’s area for long enough to attend school – for example the child of a Traveller who is on a caravan site for six months, or the child of an asylum seeker in interim asylum support accommodation.

The early years foundation stage covers the period between birth and the age of 5 (thus including the Reception class in primary school). For further information, please see the government website – https://www.gov.uk/early-years-foundation-stage.

All three and four year olds qualify for 15 hours a week free education during school term time to ensure their ‘school-readiness’. Some migrant children, for example in asylum-seeking families who are on certain types of asylum support, are entitled to free early years childcare provision from the age of two.

It is necessary to give personal details when enrolling a child for school in order to prove their legal name and date of birth. A residential address must also be given. Proof of residence can be an issue for migrants who lack status at secondary school transfer. The local authority where the child lives (not where they go to primary school) administers the child’s transition to year 7, taking into account parental preference and allocation of school places. Many local authorities ask for a council tax bill or tenancy agreement to prove residence within their area.

The school does not need to know what the immigration status or nationality of a child is, but sight of a child’s passport or other ID document (such as an European Union or asylum registration ID card)  may be requested in order to ascertain the child’s correct name and date of birth, where there is no UK-issued birth certificate.

For information on the school census, see the campaign group Against Borders for Children (Schools ABC), at: https://www.schoolsabc.net/.

Children in local authority care should be found a full-time education placement in a local mainstream school within 20 school days of becoming looked after. The Education Act 2005 makes it a statutory responsibility to prioritise school admissions of looked-after children, and the 2014 Department for Education School Admissions Code recommends that looked-after children are given the highest priority when placed on the waiting lists of oversubscribed schools.

Social workers and carers should understand local arrangements for priority admissions and ensure the child gains a place at the most appropriate school for them.

Most local authorities have equality policies that cover areas where children might suffer discrimination (e.g. race discrimination in failing to place a Traveller child). It can be possible to take legal action against an authority which is not following its own policies.

Schools cannot legally refuse to admit a child at the beginning of the academic year unless the school is full, or they have selective admissions criteria (for example relating to being a member of a particular religious group).

In-year admissions can be more difficult, but if a local authority cannot place a child through its normal in-year admissions process, it must have a protocol covering fair access, developed in partnership with local schools, published on its website. The purpose of the protocol is to ensure that children who are ‘hard to place’, including migrant children, get into school as soon as possible.

Local authorities have a duty to provide additional support for unaccompanied children in their care. Department for Education guidance states that ‘as for any looked after child, a health plan and a personal education plan should be produced as part of the overall care plan’.

The education plan should include:

‘… a clear education pathway for securing high quality education provision in school or other education setting and details of particular support the child may need, for example, where the child has a special educational need. With children for whom English is not their first language, this may also include support both to learn English and to develop literacy skills in their mother tongue.’

The local authority should also:

‘take steps to ensure robust procedures are in place to monitor educational progress and a culture of proactive commitment to secure the highest educational outcomes for unaccompanied or trafficked children. This should be monitored by a senior manager, such as the virtual school head.’

If looked-after children are moved, for example to a new foster placement, education must be considered and in place before the move, unless it occurs in an emergency. Looked-after children should not spend more than 20 days out of education.

In R (KS) v LB of Croydon, it was held that the failure to facilitate access to education for three unaccompanied asylum-seeking minors for almost a year was unlawful. Following judicial review proceedings, Croydon was ordered to provide suitable education to the children pending the identification of a full-time mainstream placement. The English as a Second Language (ESOL) course on which the children had been placed was found not to meet the local authority’s obligations under the Education Act 1996 because it was under a duty to provide full-time, suitable education taking into consideration the child’s individual needs. In that case, ‘suitable’ education was taken to mean school education, though this will not always be the case.