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This article was first published in Lexis PSL Public Law.
The short answer to this question is undoubtedly, yes. Pupils who are children of migrant workers from the EU and the European Economic Area (EEA) can attend a UK state school and have the same rights to education as British citizens. The EEA comprises all member states of the EU together with Iceland, Norway and Liechtenstein.
This right was initially set out in Council Directive (77/486/EEC) of 25 July 1977 on the education of the children of migrant workers.
Article 14 of the Charter of Fundamental Rights of the European Union, which after the ratification of the Lisbon Treaty, acquired binding status within the UK and all other EU countries is also of relevance. It provides:
Until the UK has negotiated its terms of exit from the EU, nothing has changed in this respect.
A local authority has a duty to educate all pupils within its area. Sections 13, 13A and 14 of the Education Act 1996 (EA 1996) require local authorities to ensure that efficient primary, secondary and further education is available to meet the needs of their population; ensure that their education functions are exercised with a view to promoting high standards ensuring fair access to opportunity for education and learning, and promote the fulfilment of learning potential; and secure that sufficient schools for providing primary and secondary education are available for their area.
EA 1996, ss1–3 (as amended) sets out the stages of education, and specify definitions in relation to ‘primary, secondary and further education’ and the meaning of ‘pupil’.
Under EA 1996, s9, pupils are to be educated in accordance with parental wishes. However, this does not necessarily mean that parents will obtain their choice of school.
In cases where there are more applications than available school places, it is legitimate for schools to use oversubscription criteria.
How local authorities and governing bodies set oversubscription criteria is contained with the School Admissions Code ('the Admissions Code'), which is statutory guidance issued under section 84 of the School Standards and Framework Act 1998 (SSFA 1998). The Admissions Code applies to all admissions to maintained schools and academies in England. For information on the separate regime governing primary, secondary school and sixth form admissions and appeals in Wales.
Maintained schools are defined in SSFA 1998, s 88(1)(a)–(b).
Academies are defined in section 1A of the Academies Act 2010 (AcA 2010). Academies are required by their funding agreements to comply with the Admissions Code and the law relating to admissions, although the Secretary of State has the power to vary this requirement
The Admissions Code also applies to governing bodies and local authorities, schools adjudicators and admission appeal panels. These bodies have a statutory duty to act in accordance with the relevant provisions of the Admissions Code.
The Admissions Code provides it is unlawful to use a lottery system of allocation. The Equality Act 2010 (EqA 2010) outlaws discrimination on grounds of disability, race or sex. Testing of pupils' academic ability is allowed in relation to grammar schools, but allowances must be made within the testing process for any disabilities a prospective pupil may have.
As a parent or carer, one can challenge an admission decision before an Admissions Appeal Panel. The Admissions Code should be read alongside the School Admission Appeals Code and other guidance and law that affect admissions and admission appeals in England. The Admissions Appeals Code sets out the process for appealing school allocation decisions. Special criteria are applied in relation to appeals concerning primary school placements.
It is the responsibility of admission authorities to ensure that admission arrangements are compliant with the Admissions Code. Objections to the admission arrangements of both maintained schools and academies can be made to the schools adjudicator whose decisions are binding and enforceable under SSFA 1998, s88H.