Right to health: the discrepancy between law, theory & practice
By law, the Facilitation Directive (2002/90/EC) stipulates that EU member states shall punish “any person who, for financial gain, intentionally assists a person who is not a national of a member state to reside within the territory”. Member states may abstain, but they are not required to refrain from punishment if the aim is to provide the person with humanitarian assistance.
In theory, only France explicitly states in national law that the provision of medical care is exempted from punishment if it is carried out to preserve the “health and well-being of a non-national”. A number of other member states allow for some degree of humanitarian assistance which may include health care. Eight countries do not allow for any legal exemptions from punishment, neither for facilitation of stay that is not-for-profit, nor humanitarian assistance.
In practice, even if some member states allow for health care provision on the grounds of humanitarian assistance, these services are rarely accessible due to financial, administrative and other barriers.
Access to health care is a human right for all, no matter residence status. Social Platform therefore calls on decision-makers to revise the Facilitation Directive to oblige member states to allow for the provision of humanitarian assistance to undocumented migrants, including health care. Read about our campaign against “criminalising solidarity” and take part in our public consultation.
In reality, many local and regional authorities have found innovative ways to overcome barriers and provide more inclusive policies, thereby enabling them to tackle issues of public health, social cohesion and homelessness.
In Belgium emergency health care is free of charge for everyone, but in order for undocumented migrants to access such a service there is a high administrative barrier to be overcome. They need to register with the municipality in order to receive a medical card, and social assistance requires a house visit to determine destitution. The fear of deportation prevent migrants from accessing such services. Municipalities such as Molenbeek in Brussels and the city of Liège have shown flexibility with regards to first medical visits. Germany requires hospitals to inform the welfare office of planned surgeries, and as a result undocumented migrants are only able to access emergency treatment. The city of Frankfurt has become a benchmark of good practice by cooperating with civil society to set up drop-in centres offering anonymous medical consultation and treatment. The city of Kiel aims to introduce anonymous health care insurance certificates to ensure that undocumented migrants can visit a doctor without the fear of being reported. The Italian government has challenged the regions of Puglia and Tuscany for extending access to health care for undocumented migrants beyond the minimum urgent care allowed at national level, however the Constitutional Court found these claims inadmissible. Until 1 September 2012 all people living in Spain were guaranteed the right to free public health care; but as a reform was passed linking this right to Spanish citizenship only, undocumented migrants’ rights were limited to access to emergency care. The government of Catalonia and the regional government of Andalusia have adopted a complementary provision allowing undocumented migrants to register to access primary health care. In Sweden undocumented migrants have been required to pay the full cost for receiving emergency health care. International attention and the mobilisation of civil society resulted in a reform from 1 July 2013 onwards that reduced the cost to a very small fee. Read more in a report by PICUM.