Document Type : Original Article
1 PhD student in Private Law, Yazd Branch, Islamic Azad University, Yazd, Iran
2 Associate Professor, Department of Law, University of Isfahan, Isfahan, Iran
3 Assistant Professor, Department of Private Law, Khorasgan Branch, Islamic Azad University, Isfahan, Iran
Article Title [Persian]
حقوق اتباع بیگانه در همه تفاهم نامه های بین المللی مورد تاکید و توسط اکثر کشورهای جهان پذیرفته شده است. لیکن این حقوق در منطقه خاورمیانه در چهار دهه اخیر به دلیل اوج گیری تعارضات سیاسی و مذهبی ، جنگ ها و مهاجرت میلیون ها نفر به کشورهای دیگر با چالش هایی روبرو بوده است ، هدف مقاله حاضر بررسی تطبیقی حقوق آموزشی اتباع بیگانه در نظام حقوقی ایران و فرانسه است. روش تحقیق ، تطبیقی کیفی و انتخاب کشورهای مورد مطالعه بر اساس نمونه گیری هدفمند صورت پذیرفت. برای جمع آوری داده ها از روش جستجوی ساختار یافته استفاده و روش تحلیل داده ها آنالیـز محتـوی کیفـی هدایـت شـده بود. یافته های تحقیق نشان می دهند بین نظام های حقوقی فرانسه و ایران از لحاظ پذیرش میثاق های بین المللی - که در آنها حقوق آموزشی اتباع بیگانه بوضوح به رسمیت شناخته شده است - شباهت وجود دارد. عمده ترین تفاوت ها بین این دونظام حقوقی به مواردی همچون عدم تصریح قانون گذار بر اجرای عملی حقوق آموزشی اتباع بیگانه برای حدود چهل سال درایران ، تعدد مراکز صدور قانون برای اتباع بیگانه در ایران ، عدم توجه به نقش مادر در صدور شناسنامه برای کودکان در ایران و عدم وضوح قوانین آموزشی مرتبط با اتباع بیگانه در فرانسه اشاره دارد . بر اساس یافته های تحقیق به قانون گذاران ایرانی پیشنهاد می گردد با توجه به لزوم هماهنگی قوانین با تحولات جدید جوامع و هم چنین تصریح قوانین بین المللی، در قوانین مرتبط با حقوق آموزشی اتباع بیگانه بازنگری صورت پذیرد.
In the last four decades, the Middle East has witnessed eight years of war between Iran and Iraq (the longest classic war of the twentieth century), war between Iraq and Kuwait, the occupation of Afghanistan by Russia and then the United States, occupation of Iraq by the United States, the war against ISIS in Syria and Iraq and war in Syria and Yemen. The first obvious consequence of these wars was the flight of millions of people to neighboring countries and Europe (Wood, 2019). The entry of refugees into the host countries has economic, social, cultural, legal and educational effects (Miller, 2018). What is most commonly considered are the economic consequences of immigration - especially on issues such as the labor market, wage levels - and cultural challenges (Borjas, & Brücker, Hauptmann, & Upward, 2014; Monras, 2017, Brunner, & Kuhn, 2014, Card, Dustmann & Preston, 2012, Chojnicki, 2013). But what have so far received less attention from social policymakers are the legal and educational effects of immigration on host countries. In legal dimension, the host community needs to review, draft, and enact laws related to boundaries and how foreign nationals are present and active in various social institutions (Durieux, and Hurwitz, 2004). At the educational aspect, schools and universities are also under pressure to register immigrant students (OECD, 2015).
Many of these immigrants are children and young people who have been forced to leave their class, school, and college. Also, as the age structure of the population in many Middle Eastern countries shows, the most of refugees are very young and gives birth to new children in the host country. These refugees need to receive various supports from the host country. One of the most important supports is the presence of refugee’s children in schools. In fact, as UNESCO emphasizes “All individuals, refugees, migrants and forcibly displaced people have the right to education, which is considered to be an indispensable means for the full realization of other human rights. Indeed, education gives refugees the intellectual tools to shape the future of their own countries or to contribute meaningfully to the countries that offer them shelter, protection and a vision for the future” ( UNESCO, 2016, p. 2). Due to the emphasis of international organizations on the right to education, many countries have tried to provide educational opportunities for refugee children. In this regard, European countries have valuable experience. For example “All European States that were affected by the 2015-2016 refugee and migrant crisis have made an effort to ensure children can go to school. In Bulgaria, Greece and Serbia, for example, between 50% and 62% of all school-age refugee and migrant children were integrated into the formal education system as of December 2018” (UNHCR, UNICEF, IOM, 2019).
Despite the great efforts of the host countries, there are still many obstacles to accessing educational opportunities. These barriers can be divided into two general categories: educational and non-educational barriers. “Insufficient school capacity both in terms of resources and staff trained to work with refugee and migrant children, language barriers, psychosocial issues, as well as limited catch-up classes is among the most common educational challenges faced by refugee and migrant children in need of education. Among the non-educational challenges, lack of information on enrolment procedures and transportation to/ from remote asylum facilities can also present a barrier. There is no systematic or harmonized approach to data collection on refugee and migrant children in national education systems across Europe. This makes it complex to analyses issues particularly around school attendance and learning outcomes among this specific group” (Ibid, p.1-7). In addition to these obstacles, the legal challenge must also be mentioned. On this challenge, refugees face two issues: first, the lack of certain laws on refugee rights, including the right to education, and second, anti-refugee laws or minimum protection laws. That's why the authors of the joint report of the UN High Commissioner for Refugees emphasize about legal restrictions “Legal barriers including lack of clear provisions on compulsory education for children in reception centres, children without residence permits or international protection status, or legal provisions for compulsory education, which may limit access to education for children outside a certain age group – e.g. children below 5 or above 15 years old. In addition, there are often no legal provisions on how children’s education level should be assessed and assigned to school grades”(Ibid, p.7). Naturally, these challenges are exacerbated in developing countries as existence of clear and precise rules is the first step to determine responsibility of principals and educational planners to provide facilities for refugee children.
Meanwhile, Iran has a special position in the heart of the Middle East. Iran's war with Iraq has displaced many Iranians. At the same time, Iran has received more than 3 million immigrants, especially from Afghanistan and Iraq (Tabnak, 2018). In a way, this country is ranked fifth among immigrant-friendly countries (Masoumi, 2019). The majority of these refugees are Afghans. As stated by the United Nations High Commissioner for Refugees “The majority of refugees residing in the Islamic Republic of Iran are Afghans who arrived during the 1980s. Afghan refugees constitute the second largest refugee population and remain the largest population in protracted displacement under UNHCR’s mandate. The Islamic Republic of Iran hosts one of the largest urban refugee populations worldwide (UNHCR, 2015, 1). Many Afghans have been living in Iran for some 40 years since the 1980s due to multiple wars. The majority of these people have children and the birth rate is high among them (Abbasi-Shavazi, Glazebrook, Jamshidiha, Mahmoudian, & Sadeghi, 2005). In addition, Afghan refugees and their children usually have low levels of literacy, which naturally puts more pressure on the host country's education system (UNHCR, UNICEF, IOM, 2019). This situation, along with legal hurdles, puts a lot of pressure on refugees. Considering what has been said and the need of Iranian policy-makers to be aware of the laws related to foreign nationals and to get acquainted with invaluable experiences of other countries, the present researchers try to compare educational rights of foreign nationals in both Iranian and French legal systems. According to this goal, the sub-objectives of the research are:
• Identify the educational rights of foreign nationals in international conventions
• Identifying the educational rights of foreign nationals in Iranian law
• Identify the educational rights of foreign nationals in French law
• Identify the similarities and differences between the educational rights of foreign nationals in France and Iran
2. Research Method
The research method is qualitative comparative and statistical population includes books, articles and national and international reports about educational rights of foreign nationals. France and Iran were selected based on targeted sampling. Regarding the choice of France, two reasons should be mentioned: First, France's leadership in formulating laws and imitating many countries in the world of its legal system, and Second, the historical background of Iran's legal system following the French legal system. Structured search method was used to collect data, which includes four stages of search based on keywords, selection of valid sources, brief review through title and abstract, and finally selection of source (Webster and Watson; 2002). The result of the first step was to find and review the content of 123 sources and then select and analyze 50 sources based on directed content analysis. The purpose of content analysis is to validate or potentially evaluate the implicit development of a previous conceptual framework or theory (Hsieh, and Shannon, 2005).
In this section, according to the objectives of the research, the results of data analysis are presented in 6 sections separately:
First: the rights of foreign nationals in international conventions
All immigrants living in a country other than their homeland are foreign nationals. Residence of foreign nationals can be legal, i.e. the immigrant has entered and resided in a country by obtaining a residence visa, or it can be illegal, meaning that the person entered the country without a valid visa and illegally or with a visa and legally but the visa or residence permit has expired and has not left host country (Jafari Langroudi, 2009). In general, the rights of foreign nationals are subject to one of the three principles of requirements of international law, reciprocal behavior or domestic law, which are briefly explained (Nasiri, 2018):
• International law: In the past, few governments accepted foreigners as legal entities. In parallel with the progress in international relations, governments were forced to accept the minimum rights for foreigners (Wallace, 1999; Seljuk, 2016). These minimum rights vary according to the political, social, economic, cultural, and even geographical conditions of the countries. The international community has issued several declarations on human rights and concluded important conventions. In terms of these laws, different criteria are used to determine the rights of foreigners. According to the theory of equal behavior, foreigners enjoy the same rights and privileges as the citizens of host country instead of having a special status. It should be noted that some inequalities are allowed in this view. For example, it is not necessary for foreign nationals to have political rights (Beldso and Boschk, 1996). Another important criterion is the observance of minimum treatment of foreigners in accordance with international standards. Although it is not easy to provide a precise definition of minimum international behavior, it usually means that a country must behave properly towards a civilized nation in the face of a foreigner. But again, there is no clear definition of the proper behavior of a civilized nation. However, according to this criterion, special cases such as foreigners should not be abused and their property should be compromised and they should also be given the right to freedom of thought, religion, privacy, non-arbitrary detention and non-discrimination are very important. Given this brief explanation, many international memoranda of understanding have been adopted by governments nowadays, including the International Convention on Economic, Social and Cultural Rights, the International Convention on the Rights of the Child, UNESCO Convention against Discrimination in Education, and International Convention for the Protection of the Rights of Migrant Workers and their Families, which are relevant to the subject of the present study.
Despite the positive or negative impact of these three principles on people's access to education, access to free and compulsory education for children under 17 has been recognized in several international conventions, and all countries that have signed these conventions are legally obligated to provide free education for all children without discrimination.These conventions include:
1. International Convention on Economic, Social and Cultural Rights: Article 13 of the Convention emphasizes that free and non-discriminatory education is the right of all children living in member states (both citizens or legal and illegal immigrants) (United Nations, 2020). France and Iran have signed the convention.
2. International Convention on the Rights of the Child: Article 28 of the Convention states that all children of school age must have the right to compulsory and free education. The Convention prohibits any discrimination against children (United Nations, 2020b). France and Iran have signed the convention.
3. UNESCO Convention on the Elimination of All Forms of Discrimination against Women: This Convention prohibits any form of discrimination in the educational system, including gender, ethnicity, language, etc. Article 3 of the Convention emphasizes that children of foreign nationals must enjoy all the rights and facilities of a citizen's children in the educational system (UNESCO, 2019). France and Iran are among the countries that have acceded to the Convention and are obliged to implement it.
4. International Convention for the Protection of the Rights of Migrant Workers and their Families: Article 7 of this Convention prohibits any form of discrimination. Article 30 of the Convention also emphasizes that children of migrant workers must enjoy the same right to free education as children of a citizen without discrimination, and that the parental status of the child must not affect the right to education of the child (United Nations, 2020c). Iran is one of the countries that have not yet acceded to the Convention.
Second: the rights of foreign nationals in Iranian law
In this section, we briefly discuss the rights of foreign nationals in Iran. At present, according to Article 976 of the Civil Code of Iran, the persons who have one of the following seven conditions are citizens of Iran and if they are not included in any of these clauses, they are introduced as foreign nationals:
However, the first major document on the rights of foreign nationals is the sixth amendment to the Iran’s Constitution, which dates back to the late Qajar period (1725-1925). In this article, the protection of the lives and property of foreign nationals was explicitly emphasized. With the establishment of the Pahlavi dynasty and until its fall (1925-1979) and simultaneously with the ordinary laws and civil law, independent regulations regarding the entry and residence of foreigners were also approved. From then until 1980, when the Constitution of the Islamic Republic of Iran was adopted, there was no major change in the rights of foreigners in Iran (Seljuqi, 2016). Principles 11 and 14 of the Constitution of the Islamic Republic emphasize the unified view of all Muslims as one nation and the unity of the Islamic nations. Also, according to Article 11, the government of Islamic Republic of Iran and Muslims are obliged to treat non-Muslims according to good morals and Islamic justice. Also, Articles 5 to 9 and 961 to 991 of the Civil Code and articles of the Code of Civil Procedure provide for the limits of the rights of foreign nationals (Nasiri, 2018). In addition, several laws have been enacted regarding the rights of foreign nationals in matters such as marriage, divorce, property, inheritance in Iran (Articles 1, 3, 2 and 7 of the Civil Code) (Najafi, 2000; Arfania, 2016). For example, according to Article 1059 of the Iranian Civil Code, a non-Muslim foreign man has absolutely no right to marry an Iranian Muslim woman, and if he is a Muslim, marrying an Iranian woman, in accordance with Article 1060 of the Civil Code requires special permission from the government. Another important example that may be related in some way to the main purpose of the present study is the right of work for foreign nationals. Article 14 of the National Employment Law considers Iranian citizenship as one of the conditions of employment, and Article 15 stipulates that the employment and determination of the salaries and length of service of foreign nationals will be in accordance with the laws approved by the parliament. Given the growing international trade, the establishment of branches of private companies and institutions in different countries, and the impact of political events such as the war on the national economy, it seems necessary to reconsider domestic law. Furthermore, “the Islamic Republic of Iran is a signatory to the 1951 Convention and 1967 Protocol and based on international commitments, the Islamic Republic of Iran should provide services to refugees (UNHCR, 2015, 1).
Third: The rights of foreign nationals under French law
In French law, the principle is to pay attention to the rights of foreign nationals. Article 11 of the Civil Code stipulates that foreigners in France have the same civil rights as those of their compatriots in France (Bertossi, 2007). Under French law, foreigners must be able to show a valid travel document or visa to enter the country. However, consular officials have a wide range of options to consider. The spouses of French nationals can also have the right to reside. French law also allows asylum seekers to bring family members to France without preconditions for legal residence or income. Access to minimum welfare benefits for foreign nationals is similar to supplementary benefits for workers and allowances for the elderly (Bertossi, 2008). In France, access to many jobs is still subject to French citizenship, the European Union or citizens of countries that have entered into an agreement with France (OHCHR. 2006).
Fourth: The educational rights of foreign nationals in Iran
The first point to consider in this section is the definition and purpose of educational rights. Simply education rights means allowing people to study, so that children from 6 to 18 year old can receive formal general education. Of course, this age range can be extended to the end of the bachelor's degree, but in most countries of the world, general and compulsory education is considered by the legislature until the end of 18 years (World Bank, 2019). However, according to this definition, until 2014, all foreign nationals under the age of 18 in Iran were practically deprived of access to education. Of course, this deprivation does not necessarily mean that the Iranian government will not accept international law for the last half century. Based on this, the educational rights of foreign nationals in Iran can be divided according to the two groups of internationally accepted laws and domestic law. Regarding international laws and conventions, as mentioned earlier, Iran has accepted membership in the three conventions such as Economic, Social and Cultural Rights, the International Convention on the Rights of the Child, and UNESCO Convention against Educational Discrimination. Under these conventions, Iran is obliged to provide equal educational rights to all children of foreign nationals - without any discrimination.
Regarding the educational laws of foreign nationals approved by the legislative institutions in Iran, it should be said that in 2014 and for the first time, the Supreme Leader of Iran - who has the highest religious and political power in the country - announced that no Afghan children (even illegal and undocumented immigrants) should not be deprived of education, and must be enrolled in Iranian schools (Boyer, 2019). Of course, although this statement directly refers to Afghan children, it seems that this order also includes children of other foreign nationals. It should also be added that it seems there is no many children from other countries in Iran at present except very small number of children from Iranian-Iraqi families, foreign students or embassies’ staffs. However, since 2014, the presence of foreign children in Iranian schools has become apparent in legal, practical and real terms. In 2016, the Cabinet of Ministers approved the "Register of Foreign Students' Enrollment Certificates" - in coordination with the Ministry of Interior - and sent it to all schools for implementation. In this method, it is announced that the registration of students in different levels of education up to end of upper secondary school will be the same as for Iranian students.
According to this policy, in all educational activities within the school such as participating in camps, competitions, cultural and educational activities, and the implementation of family education courses, students of foreign nationals have the same conditions as Iranian students, and therefore the separation of these students from each other is prohibited. According to this procedure, the submission of one of the following documents by the child's parents is sufficient for registration:
• Passport with residence permit
• Special identity card for foreign nationals
• Intercity traffic sheets
• Authoritative refugee booklet issued by the Iran police
• Valid residency card issued by the Iranian police
• Holders of special residence cards (issued by the Ministry of Interior)
• Special educational support card (Research Center of Islamic Parliament, 2016, 2)
Parents of students who do not have an ID card can also get a special education card for their children. Of course, the identity and residency documents of each person are valid within the same province or city and students are allowed to attend schools in the same area. In addition, if the student's residency documents expire before the end of the school year, she/he can continue her or his study. One of the required documents is a Special Educational Support Card that has been provided by the Ministry of Interior of Iran for foreign children since 2016. This card contains the details of pupils and parents and must be replaced before the start of the new school year. Another facility in the new law is that school tuition fees are same for Iranians and foreign nationals. In addition, it was decided that the participation of all foreign students living in the Islamic Republic of Iran in official cultural and sports and scientific competitions would be unrestricted up to the provincial level. The last article of this law emphasizes that the registration of those children of foreign nationals who have a legal resident certificate in the preschool period is same as Iranian (Karimi, 2019). Following the ratification of this law, the trend of the presence of foreign nationals (the majority of whom are Afghan) in Iranian schools has increased, so that according to the latest statistics, about 470,000 foreign pupils study in 28,000 schools of Iran. Of these, nearly 123,000 have enrolled in schools without proof of identity. Of the total immigrant population, 27.5 percent study in rural schools and 72.5 percent in urban schools. Also, about 320,000 pupils are studying in primary schools (Hakimzadeh, 2019).
Fifth: The educational rights of foreign nationals in France
Under European Union law, all children regardless of gender or beliefs have the right to access free education. The Convention on the Rights of the Child, adopted in 2007, recognizes the right to free education for all children living in Europe - even students with an illegal presence in one of the Member States. Therefore, all immigrant children with any residential status (legal or illegal) have equal rights and facilities with European citizens in the education system of the member states. According to a 2009 report by the European Watch Institute, the law is fully enforced in Belgium, Italy, Portugal, the Netherlands, France and Spain. In France “refugee and migrant children appear in national education statistics only when they do not speak the language of instruction (French) and require additional language support. Latest publicly available data from the 2016-2017 school year indicates that, among the 12.9 million children enrolled in both public and private education, some 60,673 were non–French speaking. This number does not include French-speakingrefugee and migrant children from West Africaor other countries, where French is a commonlyspoken language. On average, around 90% of non- French speaking children were placed in preparatory classes (specific classes for non-French speaking children) or have benefitted from additional language support” (UNHCR, UNICEF, IOM, 2019, 5). In addition, since 2009, the French government is implementing a national programme “Opening school to parents for successful Integration” which aims to engage parents of migrant and refugee children (Meyer and Dumortier, 2015). In 2017, over 300 schools were involved; offering free of charge French language and training courses for parents, increasing their understanding of the French education system and providing them with practical advice on how to better support their children in the learning process (UNHCR. UNICEF, IOM, 2019).
Sixth: Comparing the educational rights of foreign nationals in French and Iranian law
Analysis of data related to the right to education for children of foreign nationals shows similarities and differences between the two societies of France and Iran. In terms of similarities, we can mention the following:
Despite these similarities, in all three aspects of intellectual foundation, ratification and implementation of the right to education for foreign nationals, there are major differences between France and Iran. The main differences are:
1) At present, the ideological foundations governing French law are based on the acceptance of the philosophical system of liberalism and democracy, while Iran law is largely adopted in accordance with the principles of Islam.
2) Although both countries consider all three principles of international law, reciprocity, and domestic law in regulating the rights of foreign nationals, France's emphasis is mainly on the observance of the two principles of international law and reciprocity, while Iran's actions are largely influenced by attention to domestic law in matters related to foreign nationals.
3) Until 2016, Iran's civil law did not explicitly mention the right to education of foreign nationals, while for many years France has clearly recognized the right to education as one of the accepted rights in democratic systems.
4) Although both countries have accepted international agreements and conventions based on the right to education of children of foreign nationals for more than four decades, in practice, Iran had not fulfilled these obligations until 2015. France's commitment to these laws may be due to the small number of children of foreign nationals in the country, while more than 400,000 foreign children are currently studying for free in Iranian schools (the majority of refugee children from Afghanistan).
5) There is currently no difference between the regions of country for the implementation of the law on the right to education of foreign nationals in Iran, while the French federal system has provided the opportunity for different courts to support or deny rights of education for foreign nationals.
6) There are far more legal challenges for foreign nationals in Iran than in France. Challenges such as monopoly of main citizenship only through paternal lineage and non-issuance of birth certificates for children with Iranian mothers and non-Iranian father until the age of 18 (Yazdanpanah, 2015).
7) The latest difference is the multiplicity of decision-making centers and the issuance of legal rules and regulations related to the rights of foreign nationals in Iran. Analysis of the findings shows that in Iran, in addition to the parliament, the cabinet, police, Ministry of Education, and Ministry of Interior are directly or indirectly involved in making decisions for or against foreign nationals
In recent years, attention to the rights of foreign nationals, and especially the education of their children, has been on the rise among politicians, lawyers, and educational policymakers. One of the most important factors related to this issue can be considered the increase in migration caused by political crises such as war. That's why today around the world, 4 million refugee children are out of school and missing out on their right to an education due to displacement, poverty and exclusion (UNHCR, 2018). Meanwhile, regions such as the Middle East are facing a wave of forced migration more than ever before. Many countries in the Middle East, on the one hand, have witnessed the migration of their people to other countries, and on the other hand, the influx of immigrants from neighboring countries. Iran is one of the countries that have witnessed the presence of children of citizens of neighboring countries in its territory during the last four decades without providing a practical measure to provide them with educational opportunities. The present study, by comparing the educational rights of foreign nationals in Iranian and French legal systems, showed that both countries were obliged to provide educational opportunities for foreign nationals without any discrimination, but for nearly four decades Iran had not taken any practical action. Another finding of the investigation also shows that France also faced conflicting directions from some local courts during implementation of these laws.
Another finding of study reveals that in both countries, the legal framework for right to education of foreigners has not been precisely defined. The researchers also tried to show the differences between two legal systems. One of the most important differences is lack of dynamism in Iranian legal system compared to the French legal system. In this regard, the Iran legal system faces three major challenges: multiplicity of legal decision-making centers for foreign nationals, non-acceptance of citizenship through maternal lineage, and non-issuance of birth certificates for children of Iranian mothers with non-Iranian fathers. The findings of the present study do not support research in Iran, as no research on the educational rights of foreign nationals has been conducted by Iranian researchers. However, these findings support findings of Al-Zuhili, (2005); Carol, and Vally (2012); Dryden-Peterson, (2011); European Union Commission, (2014); Fernández, (2017), Mthethwa-Sommers, & Kisiara, (2015); Singh, (2006) and UNESCO (2014). According to the research findings, the following suggestions for improving the situation of foreign nationals in terms of greater access to educational rights are provided to Iranian legislators:
v Preparation and enactment of laws related to the educational rights of foreign nationals with more details on the age range of the people in need of education, and reduction of the documents required for registration,
v Revise and improve existing laws regarding the admission and issuance of easy citizenship for children with Iranian mothers from birth,
v Change and amendment of the citizenship law and acceptance of equal rights for men and women in receiving birth certificates for their children regardless of the citizenship of the spouse,
v Amendments to the Employment Act require the use of the child's mother tongue in order to employ foreign language teachers.