South Africa’s Phakamisa Judgment and the White Paper on Citizenship, Immigration and Refugee Protection: a critical analysis of access to education for undocumented migrant children

Undocumented migrant children in South Africa continue to face persistent barriers to accessing education, despite the 2019 Phakamisa Judgment, which affirmed that all children must be admitted to public schools regardless of legal status. Reports and commentary since the ruling reveal that many undocumented learners remain excluded, exposing a persistent gap between legal provisions and lived educational realities. This paper critically examines the Phakamisa Judgment alongside the 2024 White Paper on Citizenship, Immigration and Refugee Protection, which seeks to reform South Africa’s migration framework, but fails to centre equity and human rights. Situated within the broader policy landscape, the paper identifies a troubling contradiction. While the Phakamisa Judgment promotes inclusive access, the White Paper reinforces restrictive migration controls that jeopardize undocumented children’s educational rights. Employing the Capability Approach and Unterhalter’s threefold conception of equity, the paper develops an evaluative framework to explore how legal and policy shifts shape these children’s substantive opportunities to access education. The analysis demonstrates that exclusionary labelling and bureaucratic processes constrain agency and human development by obstructing educational participation. In doing so, the paper offers a conceptual critique that illuminates the ideological tensions underpinning South Africa’s education and migration policies concerning undocumented migrant children.