The Right to Education for European Union Migrants - A Study of the Right to Education in the Host State for Children Who Exercise Their Freedom of Movement for a Maximum of Three Months

Sammanfattning: The right to primary education has been subject to regulation in both international human rights law and EU law. However, the right to education in the host state for EU migrants who lawfully exercise their freedom of movement, for a maximum of three months, is unclear. The aim of this study is to investigate whether such a right exists in this particular circumstance. EU legislation explicitly provides a right to education for children of workers but for other categories, such as self-employed people, job seekers or persons who do not fit into any of these categories, there does not exist any explicit right to education. The study investigates two openings that EU law provides to enjoy a right to education; through the parent’s status as a worker or through the equal treatment provision. If it is not possible for a person to fulfil the criteria for being a worker the possibility of finding a right to education enshrined in the equal treatment provision in the EU Citizenship Directive has to be investigated. This study concludes that education is not part of social assistance, which is the only possibility to derogate from equal treatment during the first three months of residence in the host state. The equal treatment could therefore possibly include a right to education regardless of length of stay in the host state. Due to the uncertainty of an explicit right to education in EU law for all persons regardless of economic status, international human rights law is examined in order to see how it regulates the right. International human rights law do provide for the right to education and even though international treaties are signed by states and only in some case by the EU, EU legislation should be interpreted in the light of EU’s Charter on Fundamental Rights (CFR) which in its turn should be interpreted in the light of the European Convention on Human Rights (ECHR). The European Court of Human Rights, along with other international bodies, has established that the right to education is of such fundamental character that derogations are almost impossible. In light of the outlined the right to education is contextualised for a particular group of Roma EU-migrants who are coming to Sweden and are begging, collecting cans or selling street papers in order to survive and to be able to send money to their families. The question of whether this particular group can be considered workers is investigated. It turns out that it is problematic to consider begging fulfilling the requirements for work settled in EU law. Hence, children to parents in this group of persons, along with all other EU-migrant children who do not have working parents, are left without any explicit right to education in EU-law. This study concludes, after an overall assessment of the relevant frameworks that coexist, that a right to education for children who exercise their freedom of movement for a maximum of three months does exist in the host state. This is due to the reference in the CFR to the ECHR taken together with the strong position the right to education has been given in international human rights law and EU’s reliance upon international frameworks.