News / Vancouver

‘Ministry could issue a very clear directive to school districts’: immigration lawyer

Ontario law states all school-age residents ‘unlawfully in Canada’ can still enrol. But B.C. School Act is causing a headache for undocumented families.

The text of the B.C. School Act (left) and Ontario Education Act are overlaid over a photograph of Aleyan Orozco, 5, and sister Yethali, 7, following their first day back at school in Langley on Dec. 15, 2016 — after they were allowed back to school after the two Canadian citizens were booted over their parents' immigration status.

Jennifer Gauthier / Metro Order this photo

The text of the B.C. School Act (left) and Ontario Education Act are overlaid over a photograph of Aleyan Orozco, 5, and sister Yethali, 7, following their first day back at school in Langley on Dec. 15, 2016 — after they were allowed back to school after the two Canadian citizens were booted over their parents' immigration status.

Immigration experts, lawyers, advocates and teachers are calling for British Columbia’s education minister to clear up confusion surrounding which children are allowed into the province’s schools.

This week, Metro investigated the cases of three families in three school districts who, for different reasons, found their children denied a public education over parents’ immigration status.

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All three families, with the help of advocates taking up their cause, were finally able to change administrators’ minds.

Surrey newlyweds Guillermo Gonzales and Sheryl Herrera — he a nine-year Canadian resident who became a citizen last year, and she from Mexico on a work visa to work as a university administrator — never imagined how hard it would be to get Herrera’s two children into school.

He’s currently in process of applying to sponsor his wife, one year after she arrived in Canada with two kids, five and eight. But even though both reside in Whalley — within the Surrey schools catchment area — the school district’s answer was “no.”

“We got married in January,” Gonzales told Metro in an interview. “We went to the school with her children, but they would not let them in.

“We met all the requirements, and met with them to raise the issue. But they said no. They said I have to adopt her children, but that's not actually the case. It was unbelievable.”

Surrey residents Sheryl Herrera (left) and Guillermo Gonzales hold a photo of Herrera’s five- and eight-year-old children on a phone. Despite living in Whalley, their local school district balked at enrolling the kids unless Gonzales adopted them, until several advocates took up their cause and got them into class this October.

David P. Ball / Metro

Surrey residents Sheryl Herrera (left) and Guillermo Gonzales hold a photo of Herrera’s five- and eight-year-old children on a phone. Despite living in Whalley, their local school district balked at enrolling the kids unless Gonzales adopted them, until several advocates took up their cause and got them into class this October.

According to the B.C. School Act, “A person is entitled to enrol in an educational program provided by the board of a school district if the person is of school age, and is resident in that school district.”

An education ministry spokesman said, “eligibility for free public education is based on residence rather than citizenship or immigration status.”

Last week, education minister Mike Bernier refused Metro’s repeated interview requests over three days. Instead, a spokesperson said via email: “All districts must adhere to the School Act in B.C.”

Immigration lawyer Laura Best, with Embarkation Law, said an explicit provincial directive would reduce the different interpretations of the School Act, which she said is particularly “frustrating as a lawyer to see discrepancies across different school boards.”

One path to prevent such discrepancies, she suggested, would be for the Ministry of Education to “put out a policy clarification as to how they interpret the School Act,” and what approach it expects districts — which oversee their own enrolment policies based on the Act — to follow.

“There is nothing in the School Act that says a parent’s immigrant status is relevant to whether their children are entitled to a public education in B.C.,” she said. “The ministry could issue a very clear directive to the school districts.”

B.C. could also consider the Ontario Education Act, she suggested, which leaves little room for ambiguity.

“A person who is otherwise entitled to be admitted to a school and who is less than eighteen years of age shall not be refused admission because the person or the person’s parent or guardian is unlawfully in Canada,” Ontario’s law states.

Should B.C. follow in Ontario’s footsteps?

“I think it is unnecessary,” Best argued. “The way the (B.C. School) Act reads now is clear that immigration status is not a requirement to register in school.

“Simply having a directive from the ministry, or a court decision, would help with consistency in the province.”

Aleyan (left), 5, and Yethali, 7, colour surrounded by their homeschooling supplies because they were barred from enrolling in their local elementary school until Metro brought attention to their case.

David P. Ball / Metro

Aleyan (left), 5, and Yethali, 7, colour surrounded by their homeschooling supplies because they were barred from enrolling in their local elementary school until Metro brought attention to their case.

A member of the School for All campaign, Nassim Elbardouh, said the year-and-a-half old organization has recently printed more than 1,000 information cards for immigrant parents, translated in Spanish, Punjabi, Arabic and French.

Its message is that schools should welcome all children — and when that doesn’t happen, School for All may be able to help advocate.

“If your family, friend or child is coming up against barriers, come let us know and we’ll try to help,” she said. “The more people hear about us, and the more we do in the community, the more we can advocate for families.

“But if people really believe in this … we have to get away from just individual families. This is a basic right.”

For the vice-chair of the New Westminster School Board, trustee Mark Gifford, the issue has emerged on a “case-by-case” basis in several cases, but the district is exploring a more explicit policy to welcome all resident students, regardless of their immigration status.

“That would be valuable,” he said. “A policy would provide a stated reinforcement of those values and principles already contained in the School Act.

“But even if that doesn’t emerge the legislation exists to support the ability of people with precarious status to register for school if they’re ordinarily residents.”

Gifford said he has spent time learning about the “sanctuary schools” movement, which is particularly active in the U.S. where issues around undocumented immigrants are well-known, but has also emerged in Toronto and through B.C.’s School for All advocacy group.

However, while a much more explicit provincial enrolment policy would help prevent the kind of district-by-district differences that have led to confusion among families, Gifford told Metro he isn’t sure it’s even necessary.

“One argument is that the School Act already outlines all the requirements for sanctuary schools. Ordinary residence is specifically not tied to citizenship or immigration status,” he explained.

“The guarantee or promise in B.C. is that any child in a family that ordinarily resides in a community is eligible for a public education.”

Guatemalan asylum-seekers María and Carlos (not their real names) play with their two youngest children as they hold a photo of their seven-year-old daughter, who recently enrolled in a New Westminster school despite the family's lack of immigration documents. Metro agreed not to publish their names on the Internet because of threats they received in Guatemala.

David P. Ball / Metro

Guatemalan asylum-seekers María and Carlos (not their real names) play with their two youngest children as they hold a photo of their seven-year-old daughter, who recently enrolled in a New Westminster school despite the family's lack of immigration documents. Metro agreed not to publish their names on the Internet because of threats they received in Guatemala.

For Jorge Salazar, with the immigrant youth advocacy initiative Fresh Voices — which was founded by B.C.’s Representative for Children and Youth and the Vancouver Foundation — whatever course is taken, the key is to ensure all children can access their right to an education.

“We’ve tried to navigate governance models at local school districts and at the provincial level, and realized there’s no consistency really,” he said in an interview last week. “We need to engage as many stakeholders as possible to develop a better model.”

Herrera and Gonzales were able to get their kids into class in October — but only after they approached advocates with Sanctuary Health and their MLA Bruce Ralston.

“The children are so happy now,” Gonzales said. “Every day, they never stop learning, there are always new lessons.”

Herrera chimed in: “For me, education is so important for their development; children just need to learn."

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