Spain is a signatory to the 1951 Geneva Convention and the 1967 New York Protocol, among other related conventions dealing with human rights, refugees, and children. The Spanish legal instruments concerning asylumseekers and refugees are the 1978 Spanish Constitution, article 13.5, the Asylum Law 5/84 of March 26, 1984, and the Royal Decree 511/84 of February 20, 1985. The Asylum Law was partially modified by Law 9/94 of May 19, 1994, which came into force the following June. And soon a new royal decree will adapt the regulations to develop and apply the legal modifications introduced.
Law 9/94 is the result of the Spanish government's effort to harmonise national asylum procedures with European Union policies. It is centred on the asylum procedure and makes no reference to refugee rights on social issues such as housing, health, and education. The Asylum Law only guarantees authorisation for residence and professional and work activities for those with refugee status. For those other social aspects, refugees are usually referred to other regulations for foreigners in Spain. For example, in education the basis is Article 22 of the Geneva Convention.
There is only one legal regulation that deals with refugee education: the Order of the Ministry of Education and Science of November 17, 1993. This does not use the term 'refugee' and applies exclusively to nationals from the former Yugoslavia. Spain received some 3,000 persons from the former Yugoslavia between 1992 and 1994. The majority of them were granted only temporary protection (with less protection than refugee status holders). 765 persons have refugee status because they belong to the international programme for former detainees (UNHCRIOM) from Bosnia-Herzegovina.
Spain has no tradition of accepting either refugees or immigrants from developing countries in general, and therefore there is no specific law dealing with refugees and their education. This is due to two main reasons: first, legal regulations always follow on from social facts and needs. As Spain is not a major destination for refugees in the European Union, the government has not been under pressure to answer to the needs of refugees. When the number of people coming from former Yugoslavia became significant, then a specific order for former Yugoslavs was published.
Second, the government is not willing to establish a difference in education matters between foreigners in general and refugees in particular. This policy could be applauded as aiming to treat everyone the same. But it could also be criticised because it leaves refugees without the necessary assistance. This is mainly due to the lack of experience in catering for refugees from nonSpanish speaking countries. At the same time, the general feeling may prevail that the problem is still not very serious and that a solution, if necessary, will simply arise in due time. This policy of avoiding facing the specific characteristics of refugees and reducing their social and cultural problems to those of foreigners is an easy option. However, Spanish laws do discriminate among foreigners, for example between citizens of the European Union and other nationals, and between nationals of former Spanish colonies and other nationals.
The main problem for refugees arriving in Spain is to get recognition for their educational qualifications. Officials of the Spanish Ministry of Education and Science in charge of checking and approving foreign diplomas and degrees complain that cheating takes place. At the same time, others point out that many years ago, during Franco's time, some Cubans obtained Spanish university diplomas with great ease. If the refugee produces his or her educational documents, the Ministry of Education and Science proceeds to approve them as it does with any other individual who produces a nonSpanish educational document and applies for this administrative action. There are around 6,000 such applications per year, but only 20 or 30 of these on average are made by refugees.
Three responses are possible: full approval, rejection, or approval subject to the successful completion of several subjects related to the studies for which the approval is sought.
However, refugees commonly find it difficult to produce documents. Thus, when they apply for approval, the Ministry of Education and Science has to find a way to deal with the lack of documents. They try to help refugees while ensuring that a minimum control is applied. For example, photocopies; ID cards issued by firms or institutions that require an employee to have a university degree; other related documents; collaboration with Spanish embassies in collecting and checking documents; and as a last resort, a personal document signed on the refugee's oath can serve as substitute for missing originals. The usual Ministry response is to invite the applicant to take a combined exam (prueba de conjunto) on several subjects. In this case, collaboration with universities is required and some teachers are appointed to administer the exam. Refugee candidates are not limited either in the number of times they may take the exam or in the number of universities they enrol in for that purpose.
Although this procedure could make everyone happy, there is obviously a problem for refugees who finished their studies many years ago, who have lost the habit of studying, and probably studied different subjects. At the same time, Spanish professional associations complain about professional infiltration by immigrants who, in their opinion, do not hold the appropriate qualifications to practise in Spain. These associations exert political and social pressure in order to get the regulations tightened up. In a country with the highest unemployment figure in Europe, there is general sensitivity regarding job opportunities.
According to the Order concerning people from the former Yugoslavia, a child of compulsory school age is enrolled in a state school. The school principal has the responsibility for placing the child in the right level for his or her personal development. The child's age is the main factor taken into account in this respect. During the first term, pupils are observed by their teachers so that the school principal can decide whether to move them to another level. At the end of the academic year, which may also be the end of the educational level or cycle, successful pupils receive the corresponding diploma. It is true that the State Educational Inspectorate has to be fully informed about this award and has to approve it. This is not a requirement for Spanish pupils. The most surprising feature of the law is that it says nothing about the pupils' acquisition of the Spanish language. Nor is any mention made about the provision of Spanish language courses for children coming in from the former Yugoslavia. The school to which a pupil is allocated is supposed to meet the child's linguistic, educational and psychological needs from its own resources, although the average school is not equipped to do so.
Children coming from countries other than the former Yugoslavia are unprotected, or at least less protected, since no law applies to their case. However, in practice, the Order of November 17, 1993 could be enlarged to cover nonYugoslav refugee children and it could serve as a model when a case arises. Where there is no law or it does not apply explicitly to asylum cases, a policy of goodwill is implemented to avoid leaving the children unprotected.
The situation is harder for nonuniversity students who are over the compulsory schooling age. Youngsters still in their teens are over the legal age to be compulsorily enrolled in a school, but they are still rather young to give up an educational career. In the first place, they are supposed to pay for their education, at a cost which is usually out of reach for refugees. They could try and get a grant from a public or private institution to cover at least part of the educational expenses, but the question is whether they have the expertise to make a successful application to such an institution, and whether nongovernmental organisations have enough money for all those who want to study. Secondly, they fully depend on the goodwill of the Ministry of Education and Science officials, since they must either produce their education record to show they qualify to enrol at the corresponding level, or face the considerable task of getting an educational record in Spain. Their anomalous situation is not foreseen in the law.
Specific programmes have been set up to respond to growing needs. During the 1980s the Ministry of Work and Social Security, in collaboration with nongovernmental organisations (Red Cross, Spanish Committee for Assistance to Refugees, Catholic Commission for Immigrants and Refugees, and others), offered grants to some refugees to help them afford part of their educational expenses. The final goal is to integrate refugees into Spanish society. These organisations and refugee associations have been increasing their scope and tasks in recent years. They are funded by public agencies, such as the Ministry of Social Affairs, the Autonomous Government of Madrid and the Town Council of Madrid, and carry out several support activities for refugees, education amongst them.
When asked their opinion on the programme they followed, refugee students answered that the money they were given 'is not enough to cover education and living expenses, and that grants do not cover the tuition fees, which account for two monthly payments of that' (Ministerio de Trabajo y Seguridad Social 1985, p 48). It is a question not only of lack of money, but also of a lack of political will to set up a special system of provision.
Consider the following example of a particular difficulty that is even recognised by the Ministry of Work and Social Security, the main institution in charge of giving grants to refugee students: 'Grant holders are recommended to enrol in staterun schools, because this Programme does not include the payment of tuition fees in private schools, though since they cannot produce their former educational documents necessary to join those, or since no seats are available for them in state schools, they have to apply for a seat in private schools' (Ministerio de Trabajo y Seguridad Social 1985, p 43).
Since there is no overall frame of reference concerning refugees, their situation and their needs, specific programmes tend to fail because of their limitations. For example, if parents have difficulty in registering in a city census office because they lack the required documents, their children will not qualify for a place in the local school. Since the child is not enrolled parents cannot apply for an educational grant, which, even if the school is free (as state schools are), could be used to pay for transport, meals, books and so on. Other common problems include difficulty in getting the appropriate information about entitlements, grants and opportunities. Above all, refugees in a country with a very high unemployment figure, like Spain, need to devote all their time and energy to securing a salary before they can start thinking about obtaining education for their children.
It is time to establish a general policy for refugees, rather than making provision for special cases as they arise. The present policy allows refugees to enter Spain and survive on charity for a time, but does not give them the opportunity to take a job according to their qualifications, to support a family its education included or to enrol in an educational programme that will lead to a job in the future.
Dr Agustín Velloso is Lecturer in Comparative Education at the Universidad Nacional de Educación a Distancia, Madrid.
The author thanks Dr de Quinto for her advice in the preparation of this paper.
October 1996