2nd Regional Seminar on Healthcare
CONSULTATION PAPER
Raf Van Goethem
Dewallens & partners
Law firm
European and International standards as to the healthcare
coverage to be granted to people staying on the territory
CONTENT
I. SUMMARY 3
II. INTRODUCTIONARY NOTES 3
III. HEALTHCARE 5
IV. RELEVANT INTERNATIONAL AND EUROPEAN STANDARDS 5
1. International Covenant on Economic, Social and Cultural Rights (United Nations) 7
Art. 22 7
Art. 25 7
2. The (revised) European Social Charter (Council of Europe) 9
3. European Court of Human Rights 10
A. Larioshina v. Russia 11
B. D. v UK 11
V. CASE STUDY: BELGIUM (+ Europe) 12
1. Urgent Medical Care 13
2. Minors 14
3. Other European countries 14
VI. RECOMMENDATIONS 15
1. Minimal package of healthcare. 15
2. Communication and information 16
3. Anonymity 16
4. Towards a new legal and binding document 17
VII. Annex 18
European and International standards as to the healthcare
coverage to be granted to people staying on the territory
I. SUMMARY
States restrict the admission to their social security and welfare systems in order to deter irregular migrants to reside on their territory. Still, estimates of the number of irregular migrants in the EU rise up to 5 million or more. Every state needs to address certain needs of these people with regard to their human dignity.
The research question of this paper involves the modelling of the accessibility to a minimal package of healthcare that should be available to all people staying on a state’s territory.
There are a diversity of international documents and instruments containing provisions related to this research question. However, the varying degree of signatures and ratifications implies a complete lack of clarity as to what the minimum standards exactly are.
The main question is whether or not this minimal package of healthcare should include - next to some degree of strictly medical care - drinkable water, sanitary facilities, shelter and essential food. It appears to us that most international standards imply that this should be the case. However, most European countries only provide some degree of strictly medical care. Here too, we are left with the uncertainty as to what this medical care should entail. We agree with the Council of Europe that every state needs to provide ‘necessary’ medical care, rather than ‘urgent’ medical care. Although every state needs to provide guidelines as to interpret the term ‘necessary’, in the end it will be up to the health professionals to give meaning to the concept.
With regard to the provision of drinkable water, sanitary facilities, shelter and essential food, it is important to consider the fact that the European Court of Human Rights is testing the compatibility of social rights with fundamental rights. Both article 3 and article 8 of the European Convention on Human Rights could play an important role in this argument albeit future evolutions in this area remain unsure. At the moment, most European states provide all means necessary for the development of irregular minors. This implies strictly medical care as well as drinkable water, sanitary facilities, shelter and essential food and education. We recommend that other specific vulnerable groups of irregular migrants should be outlined and that these groups should also be entitled to more than necessary medical care (ex. pregnant women, people with health problems etc.).
We also stress the importance of communication and informational campaigns so that irregular migrants are aware of their rights. Last but not least, we recommend respecting the anonymity of irregular migrants when applying for healthcare. Deciding otherwise would seriously undermine the accessibility to their rights.
II. INTRODUCTIONARY NOTES
The number of irregular migrants in Europe is unknown. Estimates from the International Organisation for Migration put the figure at approximately 3 million while certain NGOs estimate the figure at 5 million or higher.
A large number of irregular migrants lose their life while trying to enter the Europe Union. Once within the EU, due to their status, they often live in an extremely precarious situation with little protection, whether in terms of housing, social assistance, healthcare, employment or other rights. They live in a climate of fear for return and many have to deal with a voluntary or forcible return process at the end of their irregular period of stay.[1]
The conception that anybody is entitled to a state’s healthcare system is no longer sustainable. Diminishing financial resources raise doubt upon the maintainability of social security systems and more and more often, patients have to pay for their own treatment. On a daily basis, states have to make decisions as to what they can and cannot offer in terms of free healthcare to their residents. It is obvious that states do not like to spend a lot of money on people who have illegally entered their territory. The European Court of Justice however has decided that irregular migrants do fall under the jurisdiction of the state where they reside. This implies that this state cannot leave those people in a situation of total lawfulness. In order to respect international standards, every state will have to adopt a legal system in order to ensure the human dignity of all people staying on its territory, whether they are residing on a legal or illegal basis.
In order to control illegal migration into the EU, many European member states have used the restrictive admission to social security and welfare benefits as a means of deterring people to come to Europe in the first place. When all migrants would be able to benefit from our social security and welfare system, this would not only attract even larger numbers of people, it would also undermine the financial resources of the system itself. Therefore, it’s only reasonable that European member states restrict the field of application when it comes to social security and social welfare benefits.
Most European member states have a system in place where different social rights are given according to the legal or illegal status of residency. Although not all people who are legally staying on a state’s territory have equal rights, it’s the people who are illegally residing on the state’s territory who will be of importance to this paper.
The Council of Europe prefers to use the term ‘irregular migrant’ to other terms such as ‘illegal migrant’ or ‘migrant without papers’. This term is more neutral and does not carry, for example, the stigmatisation of the term ‘illegal’. It is also the term increasingly favoured by international organisations working on migration issues. It is wide enough to cover all those in an irregular situation, whether tolerated or not tolerated by the authorities, whether they entered the country legally or illegally, whether they work or do not work, whether they are independent or dependent (children, aged), whether they are failed asylum seekers or persons who have failed to apply for asylum, etc.[2]
The rights of these irregular migrants have been restricted the most in the EU. However, it is not possible for member states to reduce their rights below the minimal international standards that we will discuss in this paper. In this paper, we will determine the minimal package of healthcare that should be provided to those people. Hence, the research question of this paper concerns the extent to which international law offers standards to policy makers to model the accessibility to a minimal package of healthcare that should be available to all people staying on a state’s territory.
Not only will we make some recommendations as to what this minimal package should include, we will also stress the importance of information and communication with regard to the accessibility of this package.
III. HEALTHCARE
It is important to stress that there is no universal definition of what constitutes ‘good health’ or ‘healthcare’. There are rather a number of definitions which can be applied, depending on the context in which they are used.
Potential definitions of ‘health’ can be[3]:
· the absence of disease
· a state of complete physical, mental and social well-being and not merely the absence of disease of infirmity
· the capacity for each human being to identify and achieve his or her ambitions, satisfy his or her needs and be able to adapt to his or her environment
When applying the second and third definition, we can consider the underlying determinants of good health, such as drinkable water, sanitary facilities, shelter, healthy labour conditions and essential food to be part of the healthcare concept.
The use of this or that definition does not have important implications with regard to the subject of this paper. What we need to get through, is to define a minimal package of healthcare all states will have to provide to all people staying on their territory. Whether or not this will be restricted solely to medical care or whether or not it should also include the provision of some or all of the underlying determinants of the healthcare concept is exactly the question of this paper.
IV. RELEVANT INTERNATIONAL AND EUROPEAN STANDARDS
The research question of this paper concerns the extent to which international law offers standards to policy makers to model the accessibility to a minimal package of healthcare that should be available to all people staying on a state’s territory. This implies not only that we will outline the practical content of this minimal package; we will also stress the need for guidelines concerning necessary information and communication to be provided by the state to irregular migrants, in order to optimise the accessibility to this healthcare package.
It should be noted as a starting point that international human rights instruments as well as international labour law standards are applicable to all, regardless of their nationality or status. Irregular migrants need protection and are entitled to certain minimum human rights in order to live in a humane and dignified manner. These rights include certain basic civil and political rights as well as social and economic rights.
There are a number of international and European human rights instruments that offer some protection for irregular migrants. These instruments are, however, not always ratified by many states and the diversity of different instruments contributes to a lack of clarity on the minimum rights applicable.[4]
The Council of Europe’s Assembly notes that there are many international and European instruments that have provisions which can be used to guarantee minimum rights of irregular migrants. Some of these provisions are included in the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Rights of the Child (1989), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), ILO Convention 143 on Migrant Workers (1975), the European Convention on Human Rights (1950), the European Social Charter (1961), the Revised Social Charter (1996) and the Council of Europe Convention on Action against Trafficking in Human Beings (2005).[5]
However, there is no single instrument dealing with the rights of irregular migrants. The most relevant international instrument is the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).[6] This has, however, only been ratified by a tiny minority of member states of the Council of Europe. Because of the limited scope of this paper, we will not look any further into this Convention. In the same way, it is impossible to investigate every single document in detail. Instead, we will focus on the lines of force of these international and European documents and emphasize their strengths and weaknesses.
It is clear that the large number of disparate instruments and the varying degree of signatures and ratifications, leave a web of uncertainty as to the minimum rights to be applied to irregular migrants. According to the Council of Europe, it should be possible to extract a number of minimum rights in favour of irregular migrants.[7] It will be interesting to look out for future decisions of the Council of Europe in this area as it has done a lot of relevant work with regard to the human rights of irregular migrants. In 2006, the Parliamentary Assembly adopted an important resolution, based upon an elaborate report and four thorough studies on the subject.[8]
The EU does not play a very important role in this search for standards. The EU mainly focuses on the realization of the free movement principles, without paying to much attention to the healthcare status of irregular migrants. However, there are provisions related to the care for marginal groups in society such as the Council Directive 2003/9/EC, laying down minimum standards for the reception of asylum seekers. Article 15 states that “Member States shall ensure that applicants receive the necessary healthcare which shall include, at least, emergency care and essential treatment of illness” and that “ Member States shall provide necessary medical or other assistance to applicants who have special needs”. Again, this Directive does not cover all people staying on a state’s territory, such as irregular migrants.