New GHLG Publication: Access to Preventive Health Care for Undocumented Migrants: A Comparative Study of Germany, The Netherlands and Spain from a Human Rights Perspective

Peer reviewed, open access publication by Veronika Flegar, María Dalli and Brigit Toebes in Laws vol. 5(9), 2016. Full text available at: http://www.mdpi.com/2075-471X/5/1/9/html

Abstract: The present study analyzes the preventive health care provisions for nationals and undocumented migrants in Germany, the Netherlands and Spain in light of four indicators derived from the United Nations Committee on Economic, Social and Cultural Rights’ General Comment 14 (GC 14). These indicators are (i) immunization; (ii) education and information; (iii) regular screening programs; and (iv) the promotion of the underlying determinants of health. It aims to answer the question of what preventive health care services for undocumented migrants are provided for in Germany, the Netherlands and Spain and how this should be evaluated from a human rights perspective. The study reveals that the access to preventive health care for undocumented migrants is largely insufficient in all three countries but most extensive in the Netherlands and least extensive in Germany. The paper concludes that a human rights-based approach to health law and policy can help to refine and concretize the individual rights and state obligations for the preventive health care of undocumented migrants. While the human rights framework is still insufficiently clear in some respects, the research concedes the added value of a rights-based approach as an evaluation tool, advocacy framework and moral principle to keep in mind when adopting or evaluating state policies in the health sector.

Human Rights in a Downward Spiral?

By Veronika Flegar, University of Groningen, v.l.b.flegar@rug.nl

With the high number of asylum seekers arriving in Europe, states increasingly struggle to simultaneously accommodate the interests of their citizens and abide by their human rights obligations. Particularly in light of the increasing fear of terrorism in Europe tensions may arise between security concerns and human rights. I suggest that anyone interested in human rights should think about these developments as the current number of people requesting asylum in Europe is not only a test case for the integration capacity of Germany or for the functioning of the European Union, but also for the perseverance and strength of human rights. The goal of this post is not to provide a legal analysis of the issue but rather to raise awareness for the role of human rights in this context.

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The Right to Health and the Reception of Asylum Seekers in Germany

Veronika Flegar, University of Groningen

Due to the consistently high inflow of asylum seekers, tensions are rising in several European countries. Germany is especially challenged to provide basic reception rights in accordance with international human rights standards. For this year, up to 800 000 asylum seekers are expected in Germany. Germany therefore continues to be the top of the list of the European Union (EU) countries receiving the largest amount of asylum seekers. The federal states and municipalities are struggling to provide sufficient accommodation to asylum seekers during the asylum procedure. Recently, states such as Saxony even resorted to using tents for accommodating the arriving asylum seekers. According to German newspaper Der Spiegel, the situation in these refugee camps is catastrophic and basic rights are not guaranteed. This is also the case with regard to the right to health: medical supplies are insufficient and hygienic conditions are bad, which is why diseases such as scabies and diarrhea could spread.

While the EU lays down basic standards of reception in the Reception Conditions Directive, this is not only a question of EU law. Rather, from an international human rights law perspective, it is necessary to ask what the relevant standard is and should be. The right to health is laid down in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as the highest attainable standard to physical and mental health. The non-binding but authoritative General Comment 14 of the Committee on Economic, Social and Cultural Rights (CESCR) further defines what should be included in this right. As such, General Comment 14 explicates that the right to health is an ‘inclusive right’, which includes far more than only emergency or acute care and also covers the ‘underlying determinants of health’ (such as, for instance, adequate sanitation) (paragraph 11). Moreover, ‘States are under the obligation to respect the right to health’ of asylum seekers and should therefore grant them full access ‘to preventive, curative and palliative health services’ (paragraph 34). As such, the right to health does not allow for any type of discrimination and ‘health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds’ (paragraph 12). In addition to these substantive provisions on the right to health, Article 2(1) ICESCR clarifies the related state obligations. Accordingly, Germany needs to work actively on the progressive and full realization of the ICESCR for all persons residing on German territory.

This not only shows that insufficient medical care or bad hygienic conditions in refugee camps are not in accordance with international human rights law, but also that the German Asylum Seekers Benefit Act (Asylbewerberleistungsgesetz) in more general terms is not in line with the right to health under the ICESCR. According to Article 4 of this Act, asylum seekers are only entitled to the care necessary ‘for the treatment of acute illness or pain’. The CESCR has already referred to this precarious situation in its last Concluding Observations on Germany in 2011. Accordingly, the CESCR urged Germany ‘to ensure, in line with international standards, that asylum-seekers enjoy equal treatment in access to non-contributory social security schemes, health care and the labour market’ (paragraph 13). It seems like little has happened since these Concluding Observations and the situation is only deteriorating rather than improving.

If Germany wants to abide by its international human rights obligations in the future, it is not enough to let high numbers of asylum seekers enter German territory while at the same time not fully recognizing their right to health. Germany needs to urgently reform its reception system for asylum seekers as the pressure on the system through newly arriving asylum seekers is only increasing.