The aim of this presentation s to describe the human rights obligations a state bears in educational matters under the current influx of refugees. The right to education is a fundamental human right guaranteed by many international and regional treaties. As a result, the impression may rise that everyone, not only legal citizens but also all those lacking legal documents, can easily refer to any of these texts in order to enforce access to education and every right attached to education (free admission, grants, access to special language courses etc.). The legal truth is however more complex. In the words of the special report of the United Nations on the right to education of migrants, refugees and asylum seekers: “human rights law does not sufficiently address the question of binding obligations of States to take positive measures” and “it is largely unclear which distinctions between migrants and the citizens are admissible and which are not” (United Nations Human Rights Council, 2010; Hemelsoet, 2012a: 165). Overall, the material effects of international human rights legislation on improving (irregular) migrants’ access to social rights in the European countries have remained limited: due to the lack of guarantees on effective incorporation in the municipal legal order and due to the lack of effective enforcement mechanisms, often they are not much more than a statement of normative intent (Laubenthal, 2011: 1359).

The presentation aims to go beyond a purely legal and in-detail presentation of applicable legal rules, but instead aims to give a brief overview of the most important issues making the enforceability of the right to education and the rights in education complex and delicate from a legal point of view. Refugees are a very useful example of this complexity, as they often are the first victims of insufficient justiciability of the right of access to qualitative education. As such, the presentation aims to add a multidisciplinary enrichment to debates discussed in social science research and pedagogical research.

The presentation is subdivided in three sets of legal questions related to the enforceability of the right to education and rights in education:

I. What is the legal value of human rights treaties? How can they be enforced in practice? To what extent is the justiciability of the right to education and the rights in education sufficiently guaranteed?

II. Do refugees fall within the scope of application and to which extent can they invoke human rights treaties in domestic courts to set aside domestic legislation?

III. What is the legal answer to some burning questions raised in practice when dealing with the influx of refugees: (i) can refugees be placed in special (separate) schools or classes until they can follow the regular curriculum?; (ii) can higher school fees be asked from pupils without legal documents (as was recently proposed by Marine Le Pen)?; (iii) do refugees have a right to be taught in their own native language until they learn to speak the national language? 

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