Irregular migrants face obstacles when trying to obtain health care. In order to enjoy the right to health, it is necessary to create a central reporting point to monitor actual obstacles in the access of health care of irregular migrants.
By Veronika Flegar, University of Groningen, v.l.b.flegar(at)rug.nl
The Dutch parliament recently pledged for separate reception centres for vulnerable asylum seekers. In a reaction, the Dutch State Secretary of Security and Justice Klaas Dijkhoff objected to this claim, arguing that placing “vulnerable groups” into separate reception centres is stigmatizing. Instead, he calls for a tailored approach. He certainly has a point, but one should be aware of the fact that talking about “vulnerable groups” in itself already has a stigmatizing effect – even without physically placing them into separate centres. In his statement, Dijkhoff varies between referring to “vulnerable individuals” and “vulnerable groups” which reveals insufficient awareness about the difference between these approaches. I would therefore like to draw attention to the need for a more nuanced approach towards vulnerability. There should be more emphasis on an individual assessment of the needs of persons who might be particularly susceptible to harm.
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.
Do you want to find out more about human rights in the context of migration? Are you interested in learning about social scientific research methods and qualitative content analysis programmes and their application in the legal field? Join the project ‘Vulnerability and Migration in International Human Rights Law’ as a research assistant or thesis student!
Three perspectives presented at the University of Erlangen-Nuremberg EFI Conference in Berlin, 14-16 September 2016
Lucía Berro Pizzarossa presented a research conducted in collaboration with Katrina Perehudoff about the constitutionalization of sexual and reproductive health and rights. Veronika Flegar discussed the existence of a right to preventive health care for asylum-seeking and undocumented migrant children under international law. Brigit Toebes keynote lecture took a more general approach towards the relevance of progressive realization and the AAAQ and identified some of the possible solution for such practical problems as identified with regard to both reproductive rights and undocumented migrants.
Lucía Berro Pizzarossa: Despite over three decades of discussing sexual and reproductive health and rights, we have seen very little progress in reducing their health inequalities and poor health outcomes. There is the need for a framework that can translate the international rights discussions into action. Standards in international law can only be made a reality by committed governments applying and enforcing global norms domestically. To this end, domestic constitutions are an important affirmation of State duties and individual entitlements. Constitutional rights can help shape national laws, policies and programs, or they may even be enforceable before domestic courts. The findings are based on the GHLG project Constitutional Health Commitments, where we analyzed constitutional commitments to sexual and reproductive rights and health to 1) develop an understanding of existing State commitments and 2) identify the building blocks of a model constitutional text using a human rights framework. The research we presented shows that very few jurisdictions have enshrined sexual and reproductive health and rights in their constitutions and the provisions differ widely on emphasis, approach and scope. However, our results demonstrate the political will of some countries to incorporate them in their national constitutions and provides examples of constitutional commitments to willing governments, policy makers and health and human rights advocates who seek to introduce similar text into their law, thereby providing individuals with a top-down (i.e. from laws and policies to programs) and bottom-up (i.e. enforcement through courts) framework to enjoy their right to sexual and reproductive health and rights.
Veronika Flegar: There is a need for increased attention to some of the aspects that are easily neglected in the current refugee and asylum crisis. Especially preventive health care and the rights of undocumented migrant children do not yet receive sufficient attention. My doctrinal analysis of the principle of the preventive health care rights of children showed that non-discrimination under the Convention on the Rights of the Child (CRC) could largely be labelled as an empty promise for the health rights of undocumented migrant children. While asylum-seeking children are entitled to far-reaching rights under the right to health of children, the extent to which also undocumented migrant children explicitly enjoy these rights is less clear. While terms such as ‘all children’, ‘all sections of the child population’ or ‘all children within [the states’] jurisdiction’ suggest that the rights of the CRC apply equally to national, asylum-seeking and undocumented migrant children, the fact that extensive reference in the CRC framework is made to asylum-seeking but not to undocumented migrant children undermines this conclusion. This is not the only aspect that needs further clarification in order to ensure the effective implementation of the right to preventive health care of all children. Also the right itself needs to be further clarified and delimitated. While it is promising that the right to preventive health care is explicitly and separately mentioned in Article 24 CRC, the exact content is spread throughout various documents. The CRC would benefit greatly from an additional General Comment on non-discrimination that could emphasize the scope of non-discrimination as truly encompassing all children and would pay particular attention to the relevance of non-discrimination under the right to health.
Brigit Toebes: There is no reason to be skeptical about the right to health, let alone sarcastic. Yet our research into various dimensions of the right to health reveals the need for a stronger and more refined legal framework. What requires improvement, refinement and elaboration are the concepts that we work with under the right to health. Progressive realisation in the context of the right to health is an open-ended concept and as such it forms the Achilles’ heel of the right to health. One could say that progressive realization begins where the minimum core ends. Once the core has been realised, States need to gradually or progressively realise the remaining part of the right. Progressive realization recognizes the reality that the full realization of economic and social rights may not be possible immediately or in a short period of time. In this sense, progressive realization differs significantly from the obligation contained in Article 2 of the International Covenant on Civil and Political Rights which contains the immediate obligation to respect and ensure all the rights. Several sources including the Limburg principles have stressed that progressive realization is not just about making more resources available: it is more about making effective use, optimally prioritizing available resources, and about careful planning. So it is about setting concrete priorities and targets, whilst avoiding inefficiency and corruption. To give one example: in many countries the poor are deprived of primary healthcare while specialized hospitals are built providing expensive care. Such outcomes go against the principles of progressive realization. A possible solution for making the right more concrete is working with the AAAQ in combination with the setting of indicators and benchmarks. The AAAQ is a comprehensive tool and it draws the attention to equitable access to healthcare where priorities in healthcare have to be set. The AAAQ is universally applicable and allows for comparison across countries. As such, for instance, the physical or geographic accessibility of primary healthcare is a problem in many nations, varying from Ethiopia, to Brazil, to Iceland. It has been suggested that the AAAQ is particularly useful in a policy setting; yet there are also interesting examples from domestic law and international and domestic case law showing an increasing use of the AAAQ in a legal context. In order to ensure that the right to health is not an empty promise, the primary concepts, such as the minimum core, the AAAQ, progressive realization and the definition of legal obligations must be refined. To come to a better understanding of these concepts, the insights from experts in public health, medicine, health economics as well as from civil society are most needed.
Some of the GHLG members at the Right to Health conference in Berlin. From left to right: Milan Markovic, Veronika Flegar, Lucía Berro Pizzarossa and María Dalli.
By María Dalli (PhD researcher at the Human Rights Institute of the University of Valencia, Spain; currently visiting scholar at the University of Groningen)
In 2012, Spain adopted significant legislative changes with regard to the universal right to health care. Due to these changes, the universal right to health care is currently at risk. In order to allow for a better understanding of the relevance of these measures, I will briefly outline the evolution of the Spanish National Healthcare System (NHS) as well as the recent changes. Subsequently, I will explain the main objectives of my research and the extent to which it can contribute to offering an adequate answer to these problems from a right to health perspective.
The healthcare system in Spain evolved from the Bismarck model (the social security model) of the 20th century to the Beveridge model. The Beveridge model is characterized by universal access and redistribution through a funding mechanism and was initiated through the passing of the General Healthcare Law of 1986 (HGL, 14/1986, 25th April). Subsequent laws (Law 16/2003 and Law 4/2000) regulate the rights of non-nationals. According to these laws, foreigners without legal residence status were also covered by the NHS after they had registered at the municipality. During the last decades, the Spanish healthcare system has thus been universal, financed through a progressive tax system and, as such, separate from the socials ecurity system. However, the recent measures introduce significant changes with regard to the groups that had originally been protected by the system. Consequently, the universal right to health care is under pressure.
Presently, Royal Decree 16/2012, states ‘insured’ and ‘beneficiaries’ as categories entitled to access the NHS. A person can be considered as insured if she/he is registered in the social security system (through being employed, retired or unemployed in search of employment). A beneficiary is a family member of the insured or is dependent on the insured. Such a categorization means that the access to the NHS is tied to the social security system despite the fact that the health care system is tax-funded. This is especially concerning as it means that every person living on Spanish territory is contributing to the tax system and thus to the funding of the NHS, while still not necessarily having access to the health care services of the NHS.
However, an important exception is made for persons whose annual income is below 100.000 €: they still count as insured. This exception does not apply to undocumented migrants or EU citizens not registered at the Official Register of Foreign Citizens. As a consequence, undocumented migrants and unregistered European citizens do not have regular access to the NHS as they are usually not registered in the social security system and are explicitly excluded from the possibility to count as insured on the basis of earning less than 100.000 € per year. However, there are three exceptions to the denial of access to the NHS for undocumented migrants and unregistered EU citizens: 1) emergency care, 2) health care to children under the age of 18 and 3) pre- and post-natal care.
According to the Ministry of Healthcare, more than 676.000 people have been excluded from the NHS in Spain in the last three years. Fortunately, the Royal Decree 16/2012 has been challenged by political parties and different Autonomous Communities. For this reason, Spain is currently waiting for the verdict of the Constitutional Court, which is responsible for guaranteeing the fulfilment of the fundamental rights and the Spanish Constitution.
In my thesis I explain these current changes within the Spanish NHS. In the following, I will explain the main questions that I try to answer in my research project.
From a legal philosophical, constitutional law and international law perspective, I try to provide possible solutions to the recent challenges in the Spanish health care system. From a right to health prespective, I analyse the universality of this right in relation to material equality and in relation to the organization of the health care systems on the basis of such characteristics. The thesis is supervised by Professor of Legal Philosophy María José Añón (University of Valencia), and co-supervised by Professor of Constitutional Law Gerardo Pisarello (University of Barcelona).
The research highlights the importance of the universality and equality of the human right to health. With regard to the universality, I therefore analyse the three main arguments that are alleged against universality and defend a position that takes into account the theory of basic needs. The classic models of organization of the healthcare, within the typical Welfare states, usually pay attention to poverty, work or citizenship. Hence, the aim of my research is to show that the subject of the right to health is not the poor, the worker, or the citizen (national or legal resident) but rather the human being as such. In terms of substantial equality, I focus on the theory of the indivisibility and interdependence of all human rights so as to defend the influence of the socioeconomic factors in health – especially in light of the concept of the ‘social determinants of health’ mentioned in General Comment 14 of the United Nations Committee on Economic, Social and Cultural Rights (health thus relates to issues such as the influence of food, housing, security etc.).
The main question of my thesis is thus the following: how can the human right to health be designed in accordance with the principles of universality and substantive equality?
Understanding the right to health from this point of view leads to the following subquestions:
- What are the limits of the universality of the right to health under the international human rights framework (for instance, the concept of affordability versus ‘charity’)?
- How can we design a healthcare system according to the characteristics of universality and equality in light of the previous contributions of the classic models of health systems (Beveridge and Bismarck)?
- What does this mean for the recent changes in the universal health care coverage of the National Healthcare System in Spain?
All of this will hopefully provide an adequate answer to the recent changes in Spain from a right to health perspective which can show that such regressive measures are in breach of the concept of progressivity and of the prohibition of regressivity.
Veronika Flegar and Brigit Toebes recently published an opinion piece on the current debate around minimum reception facilities for rejected asylum seekers and undocumented migrants in the two Dutch newspapers Dagblad van het Noorden and Leeuwarder Courant.
See this website for the article.