Instruments in European law

You will find in this part legally-binding and non-legally binding instruments adopted in the framework of the Council of Europe as well as legally-binding and non-legally binding EU instruments.

 

 

Council of Europe

Legally-binding instruments

- Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

 

- European Social Charter

Art. 13: “With a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties undertake:

1) to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;

2) to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights;

3) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want;

4) to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11th December 1953”.

 

Non legally-binding instruments

- Council of Europe Parliamentary Assembly Resolution 1509 (2006) on the Human Rights of Irregular Migrants.

“Emergency care should be available to irregular migrants and states should seek to provide more holistic health care, taking into account, in particular the specific needs of vulnerable groups such as children, disabled persons, pregnant women and the elderly”.

 

 

European law

Legal binding instruments

- Directive lying down minimum standards for the reception of asylum seekers

“Article 15: 1. Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness.

2. Member States shall provide necessary medical or other assistance to applicants who have special needs.”

 

Report from the Commission on the application of this Directive (COM(2007) 745 final):

“Asylum seekers are also entitled to conditional access to the labour market and health care. Access to at least emergency health care, as provided for by Article 15, is guaranteed by all Member States, including for asylum seekers in detention. A large number of Member States have broadened access to health care, sometimes granting the same access as for nationals (CZ, NL, PL)”.

 

Proposed amendments by the Cabinet Barrot (Commission in Justice Liberty Security)

- ensure that detention is used only in exceptional cases and to introduce conditions for detention taking into consideration the specific situation of vulnerable persons. The proposal also provides legal safeguards in order to ensure that detention is not arbitrary and guarantees that children are not to be detained unless it is in their own interest (and unaccompanied minors shall never be detained);

- ensure that mechanisms are established at national level with a view to identify special needs and to guarantee that appropriate treatment is available;

- guarantee an adequate level of material reception conditions, whilst also taking into account gender and age specific considerations.

- facilitate access to the labour market.

 

Non-legally binding instruments

- Charter of Fundamental Rights of the European Union

Art. 35: “Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities”.

 

- Communication on immigration, integration and employment (COM(2003)336)

“While policies to combat illegal immigration must remain vigorous, integration policies cannot be fully successful unless the issues arising from the presence of this group of people are adequately and reasonably addressed. […]

It should be remembered that illegal immigrants are protected by universal human rights standards and should enjoy some basic rights e.g. emergency health care”.

 

- Report of the EP on the implementation of the reception Directive (Roure report) containing provisions on the detention of migrants and AS and access to health care in detention.