The plight of migrant workers affects their children in two ways: some children are becoming economic orphans or ‘left behind children’ as their parents have left in search of work in cities; others, who accompany their parents from villages to cities, are denied access to a State school in the cities. In today’s China, children from rural areas are denied access to State-funded schools in cities where their parents have migrated to. The protection of the education of migrant children gives legitimacy to their legal capacity, but also practical incapacity resulting from the household registration system and discriminatory educational policies. The development of migrant-self-formed-schools highlights the changing State-society relationship and casts doubt on the sustainability of State practices. For this article, a legal method was employed by which migrant children’s right to education was investigated and studied theoretically and practically, with a wide range of studies from government documents, both published openly and internally, together with a literature search from academic sources and interviews. The results indicate that there are about 36 million migrant children in 2017 who are denied access to State schools in the cities, although China ratified the UN Convention on the Rights of the Child in 1992 and domestic law highlights free education to all children ushered in by the ‘Compulsory Education Law.’ The findings suggest that China should establish a rights-based approach to protect migrant children’s right to education so that initiatives in economic transformation do not further marginalize migrant children.