European Union Policies
This text was written on 2009/05/05.
This part intends to provide a list of texts related to access to health care of undocumented migrants and asylum seekers in the international law framework and in the regional (European) law framework.
- International law on health care and undocumented migrants
- European legal framework
- Potential EU norms protecting Undocumented migrants’ right to health
Access to health care for undocumented migrants and asylum seekers in International law
The right to health and medical care is recognised to all human beings regardless their administrative status and it is embedded in several international non legally-binding and legal binding instruments.
The right to health must be understood as the right to enjoy the “highest attainable standard of physical and mental health”, as it is established by the International Covenant on Economic, Social and Cultural Rights (ICESCR) or the Convention on the Rights of the Child (CRC).
All international treaties recognising the right to health – in general or as regards to specific vulnerable groups - have been ratified by all EU member states (with the exception of the International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families (ICRMW)).
This means that the states are obliged to comply with their provisions.
This obligation as regards to the right to health implies that states are obliged:
- to respect (they should not directly or indirectly deprive individuals of their rights);
- to protect (states should enforce respect for rights; and
- to fulfil (states should create conditions in which can be carried out).
Regarding these obligations, the principle of progressive realisation is stated. According to it, states have to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources with the intent to achieve progressively the full realisation of this right. These steps have to be deliberate, concrete and targeted.
Some references of the international laws concerning health care: Instruments in International law
Access to health care for undocumented migrants and asylum seekers in the European legal framework
A distinction should be made between the instruments adopted in the framework of the Council of Europe on the one hand and the EU instruments on the other hand. Some references of the european laws concerning health care: Instruments in European law.
Council of Europe
The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is a binding instrument that has set up a mechanism for the enforcement of states’ obligations and a Court taking binding decisions (European Court of Human Rights).
The Convention protects everyone within the jurisdiction of the states that have ratified it. This means that it also protects asylum seekers and undocumented migrants’ rights. However, as regards to the right to health, the protection is very limited: only under exceptional circumstances and only to those denied health care ,whom may as a consequence, suffer inhuman or degrading treatment or punishment. In the case Pretty v. the UK, the Court held that “the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”
- The European Social Charter is also a binding instrument and it does recognise the right to “medical assistance”, however, it expressively excludes undocumented migrants from its scope of application in its Appendix. Despite this, it is necessary to be attentive to further developments since despite this exclusion, the European Committee on Social Rights has recently stated in IFHR v. France that “legislation or practice which denies entitlement to medical assistance to foreign nationals (…) even if they are there illegally, is contrary to the Charter”.
Recently, the Parliamentary Assembly of the Council of Europe has approved a “Resolution on the Human Rights to Irregular Migrants” a non legally-binding document where it states that “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 people, pregnant women and the elderly”.
European Law
- The provisions of the Charter of Fundamental Rights of the European Union are still non legally-binding on the states. One of its provisions refers to everyone’s right of “access to preventive health care and the right to benefit from medical treatment”, however, it seems to put a number of limits to this recognition when it states that this enjoyment will be “under the conditions established by national laws and practices”.
Regarding asylum seekers, there are some legal acts adopted by the EU institutions and binding for all EU member states. The compliance with the obligations set by these norms is guaranteed by national courts and the European Court of Justice.
- One of these acts is the Directive laying down minimum standards for the reception of asylum seekers that provides that member states shall ensure “necessary health care which shall include, at least, emergency care and essential treatment of illness”. This Directive only refers to “emergency care and essential treatment of illness” as the minimum standard member states have to comply with. Despite this provision, many member states’ legislations go beyond emergency care. Yet there are still barriers in practice that prevent AS from accessing health care.
The situation is very different for undocumented migrants. There are no legal binding European acts about undocumented migrants except within the framework of the fight against illegal immigration (eg. “Return Directive” establishing the procedure for forced return and detention). This means that no EU legislation protects undocumented migrants’ basic social rights, including the right to access health care.
Even in non legally-binding documents and instruments there is very little mention of UDM in the EU and to their extreme vulnerability and social exclusion. One example can be found in a Commission’s communication that states “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”.
Potential EU norms protecting undocumented migrants’ right to health
The European Institutions only have the competences expressively attributed by the EU Treaties. Therefore, in order to know if we can expect that the EU adopts norms to protect undocumented migrants' right to access health care it is necessary to check whether they have the competence to do so, whether there are legal bases in the treaties to adopt European legally-binding acts.
There seem to exist a potential legal basis in Art. 63(3)(b) TCE which states that it is possible to adopt (legal) measures on immigration policy in the field of “illegal immigration and illegal residence, including repatriation of illegal residents”1. However, up to now, this legal basis has only been used to adopt measures to control and fight illegal immigration. In addition, the former European Commissioner Franco Frattini rejected the possibility of using it as a legal basis to adopt a Directive on UDM’s right to access health care on the occasion of a proposal submitted by the Società Italiana di Medicina delle Migrazioni in 2005-6.
In the field of health, most competence is held by member states, but the EU has the responsibility, set out in the Treaty, to undertake certain actions which complement the work done by member states, for example in relation to cross border health threats, patient mobility, and reducing of inequalities. In particular, as regards to public health, the EU can adopt legal measures to improve human health but these measures can never imply a harmonisation of national legislations.2
In the field of Social Policy, there are no legal basis for adopting measures other than simple orientations or recommendations to enhance cooperation and coordination among member states’ actions.
Finally, member states have agreed on bringing their policies together in the field of Immigration and Asylum with the priorities to control “illegal immigration” and to make sure that these migrants return to their countries. The next five year plan replacing the current Hague program covering the period of 2005-2010 will be adopted in 2009.
We collected some references about potential legal bases for european laws.
1 The new Treaty pending of ratification does not change substantially the content of this article.
2 Within the tame frame of this project, the HUMA Network team will continue to explore the possibilities to use these legal bases to advocate for the adoption of EU legally-binding instruments.