I. Right to Education
The right to education in the United Kingdom is provided for in Schedule 1, First Protocol, Article 2 of the Human Rights Act 1998, which provides as follows:
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
While the UK does not have a written constitution, it is often said that the UK has an unwritten constitution made up of important statutes, common law precedents, and unwritten conventions. The Human Rights Act 1998, which incorporates most of the substantive provisions of the European Convention on Human Rights into the domestic law of the UK, provides an informal codification of many of the rights typically contained in written constitutions.
II. Compulsory Education in England and Wales
In addition to the right to education being provided for by the Human Rights Act, the Education Act 1996 places a legal duty on the parent or guardian of a child aged five to sixteen years (known as compulsory school age), to ensure that the child attends and receives full-time education, either in a traditional school or by any other means that is appropriate for their age, ability, and aptitude, taking into account any special needs they may have. The Act makes it a criminal offense for parents or guardians to take their child out of school without authorization from the school, and an offense for parents who are aware that their child is failing to attend school to not take reasonable action to ensure that the child attends. The offense of failing to ensure regular attendance at school is punishable by up to three months’ imprisonment and/or a fine of up to £1,000 (approximately US$1,600). There are a number of statutory defenses to these offenses, such as the student’s illness, absences that are authorized by the school, or home-schooling the student.
III. Impact of the Right to Education
There have been a number of cases that have relied upon the right to education provided for by the Human Rights Act. These cases range from a case where a student was expelled from a school to a case of judicial review concerning the prohibition on corporal punishment.
The right to education reflected in the Human Rights Act—in particular the provision stating that the “State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”—was relied upon in part in a judicial review case where teachers and parents of an independent Christian school argued that the prohibition on corporal punishment in schools violated this right, as they fundamentally believed that the duty of education included the administration of corporal punishment to children who were disobedient. The High Court, Court of Appeal, and House of Lords, which was the highest court in the land at the time of the decision, all held that the law prohibiting corporal punishment was a “legitimate and proportionate limitation on the practice of parents’ religious beliefs.”
In a number of cases students permanently excluded from school commenced proceedings arguing that their exclusion was a violation of the right to education. In one of these cases, a student was suspended from school for a temporary period during a criminal investigation. During this time he was provided with educational materials to study at home. At the conclusion of the criminal investigation he and his parents were invited to the school for a meeting, which they failed to attend. This lead to the student’s permanent exclusion from school and, during the time of permanent exclusion before he could be enrolled in another school, he was not provided with any form of educational materials. His parents claimed that this violated his right to education. In this case, the court held that the exclusion from school was a proportionate measure and did not interfere with the “substance of the right to education.” Specifically, the court ruled that,
[f]or the ‘right to education’ to be effective, it was further necessary that, inter alia, the individual who was the beneficiary should have the possibility of drawing profit from the education received, namely the right to obtain, in conformity with the rules in force in each state, and in one form or another, official recognition of the studies which he had completed. It was recognised that in spite of its importance the right to education was not absolute, but might be subject to limitations. Provided that there was no injury to the substance of the right, those limitations were permitted by implication since the right of access ‘by its very nature calls for regulation by the State’.
In another case where a student was excluded, but provided with educational materials to study from home during the exclusion, the Supreme Court held that
there had [not] been any restriction on his right not to be denied effective access to such educational facilities as the school provided. [T]here was a breach of [the right to education] only if the person was denied effective access to such educational facilities as the state provided for such pupils. Ther[e] was no evidence that the arrangements made available for the appellant’s home tuition were different from those that the state provided to any pupil who, for whatever reason, was not able to attend school.
IV. Right to Education for Non-EEA Children
The right of children to receive education varies for the children of short-term, non-European Economic Area (EEA) migrants. Children in the following categories are entitled to receive education in the UK, but are not entitled to a place in a state-funded school:
- Children from non-EEA countries who are here as short-term visitors – these are children who live abroad but have been admitted to the UK for a short visit (for example as tourists or to visit relatives), and not to study.
- Children from non-EEA countries who have permission to study in the UK – these children are allowed to study in England on the basis that they attend an independent, fee-paying school.
State schools that receive applications from children that fall within one of these categories are instructed not to deny the child a place. Instead, they must alert the Home Office school referrals team, who will investigate the case further. If this team determines that the child is not entitled to state-funded education, the Home Office will determine if any further action is necessary. However; rather contradictorily, schools are instructed that they should not deny a child a place in school on the basis of the Home Office’s findings.
Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
 Human Rights Act 1998 c. 42, sched. 1, first protocol, art. 2, http://www.legislation.gov.uk/ukpga/1998/42, archived at https://perma.cc/DTW4-TH74. This Act incorporated the European Convention on Human Rights into the national law of the United Kingdom.
 Douglas W. Vick, The Human Rights Act and the British Constitution, 37 Tex. Int’l L.J. 329, 331–40 (2002), http://www.tilj.org/content/journal/37/num2/Vick329.pdf, archived at https://perma.cc/N8JQ-V5U2.
 Id. at 351–54.
 Id. § 444(1A).
 Id. § 444(1A).
 Human Rights Act 1998 c. 42, sched. 1, first protocol, art. 2.
 R (on the application of Williamson and others) v. Secretary of State for Education and Employment and Others,  UKHL 15,  2 FLR 374,  1 FCR 498, ¶ 84, http://www.publications.parliament.uk/pa/ld200405/ ldjudgmt/jd050224/will-1.htm, archived at https://perma.cc/QWG6-4Z2B.
 Ali v. United Kingdom ¶ 52.
 Guidance: School Admissions: Applications from Overseas Children, Department for Education (Mar. 25, 2014; last updated Dec. 1, 2014), https://www.gov.uk/guidance/schools-admissions-applications-from-overseas-children, archived at https://perma.cc/R4V7-4RBL; see also Therese Bosrup Karlen & Maarja Vollmer, Rights of Children in an Irregular Situation (2014), https://www.nottingham.ac.uk/hrlc/ documents/student-conference-2015/bosrup-and-vollmer-rights-of-children-in-an-irregular-situation.pdf, archived at https://perma.cc/D2QD-F6KL.
 Department for Education, supra note 13.
Last Updated: 12/30/2020