LEGAL REPORT ON ACCESS TO HEALTHCARE IN 12 COUNTRIES © Yiannis Yiannakopoulos © Yiannis

BELGIUM - CANADA - - GERMANY - GREECE - LUXEMBOURG - NETHERLANDS - - SWEDEN - SWITZERLAND - TURKEY - UNITED-KINGDOM 8th JUNE 2015 TABLE OF CONTENTS FOREWORD ...... 6 ACRONYMS ...... 8 GLOSSARY ...... 12 EU MIGRANTS ...... 12 CHILDREN OF ASYLUM SEEKERS, REFUGEES AND UNDOCUMENTED MIGRANTS ...... 12 PRIVATELY-SPONSORED REFUGEES ...... 12 THE BISMARCK SYSTEM ...... 12 THE BEVERIDGE SYSTEM ...... 12 THIRD-COUNTRY NATIONALS ...... 12 UNDOCUMENTED EU CITIZENS ...... 12 BELGIUM ...... 13 NATIONAL ...... 13 CONSTITUTIONAL BASIS ...... 13 ORGANISATION AND FUNDING OF BELGIUM’S HEALTHCARE SYSTEM ...... 13 ACCESSING BELGIUM’S HEALTHCARE SYSTEM ...... 14 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 15 ASYLUM SEEKERS, REFUGEES AND THOSE ELIGIBLE FOR SUBSIDIARY PROTECTION15 UNDOCUMENTED MIGRANTS ...... 16 EU CITIZENS ...... 19 UNACCOMPANIED MINORS ...... 20 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 21 THE ADMISSIBILITY OF THE APPLICATION ...... 21 THE SUBSTANTIVE DECISION ...... 22 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 23 CANADA (QUEBEC) ...... 24 NATIONAL HEALTH SYSTEM ...... 24 ORGANISATION AND FUNDING OF CANADA’S HEALTHCARE SYSTEM ...... 24 ACCESSING CANADA’S HEALTHCARE SYSTEM ...... 24 ACCESSING QUEBEC’S HEALTHCARE SYSTEM ...... 25 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 27 ASYLUM SEEKERS AND REFUGEES ...... 27 UNDOCUMENTED MIGRANTS ...... 30 UNACCOMPANIED MINORS ...... 33 ABORIGINALS IN QUEBEC ...... 34 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 35 TREATMENT OF INFECTIOUS DISEASES ...... 35 FRANCE ...... 37 NATIONAL HEALTH SYSTEM ...... 37 CONSTITUTIONAL BASIS ...... 37 ORGANISATION AND FUNDING OF FRANCE’S HEALTHCARE SYSTEM ...... 37 ACCESSING FRANCE’S HEALTHCARE SYSTEM ...... 38

 Page 1 CMU SCHEME ...... 39 SUPPLEMENTARY ASSISTANCE SCHEME (AIDE COMPLÉMENTAIRE SANTÉ - ACS) ...... 40 THE FREE MEDICAL CENTRE (PERMANENCE D’ACCES AUX SOINS – PASS) ...... 40 POSITIVE REFORM ...... 41 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 42 ASYLUM SEEKERS AND REFUGEES ...... 42 UNDOCUMENTED MIGRANTS ...... 43 EU CITIZENS ...... 46 UNACCOMPANIED MINORS ...... 46 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 47 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 49 SEXUALLY TRANSMITTED INFECTIONS ...... 49 TUBERCULOSIS ...... 50 THE SITUATION IN MAYOTTE...... 50 DISCRIMINATION BY THE HEALTHCARE SCHEME ...... 50 EXCEPTIONAL LAW ...... 51 GERMANY ...... 52 NATIONAL HEALTH SYSTEM ...... 52 ORGANISATION AND FUNDING THE GERMAN HEALTHCARE SYSTEM ...... 52 ACCESSING GERMANY’S HEALTHCARE SYSTEM ...... 53 RECENT REFORMS ...... 54 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 55 ASYLUM SEEKERS AND REFUGEES ...... 55 UNDOCUMENTED MIGRANTS ...... 57 TERMINATION OF PREGNANCY ...... 59 EU CITIZENS ...... 60 UNACCOMPANIED MINORS ...... 60 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 61 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 61 GREECE ...... 63 NATIONAL HEALTH SYSTEM ...... 63 CONSTITUTIONAL BASIS ...... 63 HISTORICAL BACKGROUND ...... 63 ORGANISATION AND FUNDING OF GREECE’S HEALTHCARE SYSTEM ...... 63 RECENT REFORMS ...... 63 FUNCTIONING OF THE GREEK HEALTHCARE SYSTEM ...... 64 ACCESSING GREECE’S HEALTHCARE SYSTEM ...... 65 POSITIVE REFORM ...... 66 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 67 ASYLUM SEEKERS AND REFUGEES ...... 67 UNDOCUMENTED MIGRANTS ...... 68 EU CITIZENS ...... 69 UNACCOMPANIED MINORS ...... 69

 Page 2 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 71 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 71 DETENTION ON GROUNDS ...... 71 HIV TESTING AND TREATMENT ...... 71 LUXEMBOURG ...... 72 NATIONAL HEALTH SYSTEM ...... 72 CONSTITUTIONAL BASIS ...... 72 ORGANISATION AND FUNDING OF LUXEMBOURG’S HEALTHCARE SYSTEM ...... 72 ACCESSING LUXEMBOURG’S HEALTHCARE SYSTEM ...... 72 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 74 ASYLUM SEEKERS...... 74 UNDOCUMENTED MIGRANTS ...... 75 TERMINATION OF PREGNANCY ...... 76 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 76 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 77 THE NETHERLANDS ...... 79 NATIONAL HEALTH SYSTEM ...... 79 CONSTITUTIONAL BASIS ...... 79 ORGANISATION AND FUNDING OF THE DUTCH HEALTHCARE SYSTEM ...... 79 ACCESSING THE DUTCH HEALTHCARE SYSTEM ...... 79 PREGNANCY TERMINATION...... 81 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 82 ASYLUM SEEKERS, REFUGEES AND PERSONS ELIGIBLE FOR SUBSIDIARY PROTECTION ...... 82 UNDOCUMENTED MIGRANTS ...... 82 EU CITIZENS ...... 84 UNACCOMPANIED MINORS ...... 85 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 85 POSTPONED DEPARTURE FROM THE NETHERLANDS DUE TO MEDICAL EMERGENCIES85 RESIDENCE PERMIT FOR MEDICAL TREATMENT ...... 85 RESIDENCE PERMIT FOR MEDICAL TREATMENT AFTER ONE YEAR OF ARTICLE 64 .. 86 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 87 SPAIN ...... 89 NATIONAL HEALTH SYSTEM ...... 89 CONSTITUTIONAL BASIS ...... 89 ORGANISATION AND FUNDING OF SPAIN’S HEALTHCARE SYSTEM ...... 89 ACCESSING SPAIN’S HEALTHCARE SYSTEM ...... 89 REFORM ENDING UNIVERSAL ACCESS TO CARE ...... 91 CONSEQUENCES OF THE 2012 HEALTH REFORM IN SPAIN ...... 92 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 93 ASYLUM SEEKERS AND REFUGEES ...... 93 UNDOCUMENTED MIGRANTS ...... 93 EU CITIZENS ...... 95 UNACCOMPANIED MINORS ...... 95

 Page 3 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 96 TREATMENT OF INFECTIOUS DISEASES ...... 96 CANTABRIA ...... 97 NAVARRE ...... 97 CASTILE AND LEON – CASTILE-LA MANCHA – LA ...... 97 ANDALUSIA – – BASQUE COUNTRY ...... 97 MADRID – BALEARIC ISLANDS – ...... 97 SWEDEN ...... 99 NATIONAL HEALTH SYSTEM ...... 99 CONSTITUTIONAL BASIS ...... 99 ORGANISATION AND FUNDING OF SWEDEN’S HEALTHCARE SYSTEM ...... 99 ACCESSING SWEDEN’S HEALTHCARE SYSTEM ...... 100 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 101 ASYLUM SEEKERS AND REFUGEES ...... 101 UNDOCUMENTED MIGRANTS ...... 102 EU CITIZENS ...... 104 UNACCOMPANIED MINORS ...... 104 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 105 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 105 SWITZERLAND ...... 107 NATIONAL HEALTH SYSTEM ...... 107 CONSTITUTIONAL BASIS ...... 107 ORGANISATION AND FUNDING OF SWITZERLAND’S HEALTHCARE SYSTEM ...... 107 ACCESSING SWITZERLAND’S HEALTHCARE SYSTEM ...... 108 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 110 ASYLUM SEEKERS AND REFUGEES ...... 110 UNDOCUMENTED MIGRANTS ...... 111 EU CITIZENS ...... 113 TERMINATION OF PREGNANCY ...... 113 UNACCOMPANIED MINORS ...... 113 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 114 TREATMENT OF INFECTIOUS DISEASES ...... 114 TURKEY ...... 116 NATIONAL HEALTH SYSTEM ...... 116 CONSTITUTIONAL BASIS ...... 116 TOWARDS UNIVERSAL HEALTH COVERAGE ...... 116 ORGANISATION AND FUNDING OF TURKEY’S HEALTHCARE SYSTEM ...... 116 ACCESSING TURKEY’S HEALTH SYSTEM ...... 117 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 118 AUTHORISED RESIDENTS ...... 118 ASYLUM SEEKERS AND REFUGEES ...... 118 UNDOCUMENTED MIGRANTS ...... 120 UNACCOMPANIED MINORS ...... 121

 Page 4 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 122 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 123 UNITED KINGDOM ...... 124 NATIONAL HEALTH SYSTEM ...... 124 ORGANISATION AND FUNDING OF THE UK’S HEALTHCARE SYSTEM ...... 124 THE CONCEPT OF ORDINARY RESIDENCE ...... 125 ACCESSING THE NHS ...... 126 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 129 ASYLUM SEEKERS AND REFUGEES ...... 129 UNDOCUMENTED MIGRANTS ...... 130 EU CITIZENS ...... 131 TERMINATION OF PREGNANCY ...... 132 UNACCOMPANIED MINORS ...... 132 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 132 PREVENTION AND TREATMENT OF HIV ...... 133 ACKNOWLEDGEMENTS ...... 135 AUTHORS ...... 135 CONTRIBUTORS ...... 135

 Page 5 one, but written deliberately from the Foreword concrete bottom-up point of view of patients. In order to evaluate effective The range of international texts that availability of care, the theoretical legal ensure people’s basic and universal frameworks concerning access have right to healthcare is impressive. They been compared to the situation in include binding State commitments practice. under UN, Council of Europe and EU agreements and an even greater body The most important barrier to of ‘soft’ recommendations issued by healthcare that people seen in MdM their respective institutions and programmes face in the surveyed agencies. Yet, the most recent MdM countries is restrictive national laws. report1 shows how, in practice, these These restrictions are often linked to texts often remain just words rather patients’ administrative status: asylum than effective guarantees for seekers, citizens of non-EU countries universally accessible healthcare without permission to reside, EU systems. Among the people seen in migrants with no permission to reside, 2014 in nine European countries, and unaccompanied minors. Turkey and Canada, 68.7% had no Consequently, the report healthcare coverage when they first systematically focusses on the came to MdM programmes. respective entitlements of these four groups. Access to healthcare is defined by many intertwined and interacting Financial problems in paying for care – factors. According to the European whether it concerns charges for Commission2, access includes health consultations and treatment, upfront system coverage (who is entitled to payments or the prohibitive cost of healthcare, what share of the healthcare coverage contributions – population), depth of coverage (what are equally an important barrier, basket of care people are entitled to), including for destitute nationals. It was affordability (the level of co-payment cited by 27.9% of MdM patients in the for care and treatment) and availability nine European countries surveyed. (healthcare workforce, distance, Hence, affordability of care and waiting times, etc.). In this legal report treatment is transversally present on access to healthcare, we throughout the chapters. systematically address these four aspects from the specific point of view We have analysed the consequences of people facing multiple health of legal and financial barriers on the vulnerabilities. The analysis is a legal accessibility of screening, treatment and care for HIV, hepatitis and STIs, on sexual and reproductive healthcare services, and on vaccinations and 1 Chauvin P, Simonnot N, Vanbiervliet F, Vicart M, Vuillermoz C. Access to healthcare for paediatric care. people facing multiple vulnerabilities in health in 26 cities across 11 countries. Report on the Finally, a small number of migrants social and medical data gathered in 2014 in become seriously ill after arriving in nine European countries, Turkey and Canada Europe and for them going back to Paris: Doctors of the World – Médecins du monde international network, May 2015. their home country is not an option 2 European Commission Communication on because they are not able to effectively effective, accessible and resilient health access healthcare there. Even in those systems COM (2014) 2015 final.

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countries where there is a legal framework concerning protection against expulsion, there are numerous barriers to obtaining effective protection, including barriers to access the procedure and incomplete evaluations of effective access to care and treatment in the country of origin.

MdM calls on States to offer universal public health systems built on solidarity, equality and equity, open to everyone living on their territory. All children should have the same access to national immunisation programmes and to paediatric care. Similarly, all pregnant women must have access to contraceptions, termination of pregnancy, antenatal and postnatal care and safe delivery. In order to respect the ban on the death penalty, seriously ill migrants should never be expelled to a country where effective access to adequate healthcare cannot be guaranteed.

We hope this tool can be useful to other non-profit organisations, researchers, policy makers and other stakeholders, as long as their aim is to improve and enlarge the access to healthcare for those facing multiple health vulnerabilities.

June 3rd 2015, Anne-Laure Macherey for Doctors of the World – Médecins du monde International Network

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CDAG Free and anonymous Acronyms testing centre (Centre de dépistage anonyme AC Autonomous et gratuit) FR Community ES CCG Clinical Commissioning ACS Supplementary Health Group UK Insurance Assistance CEPS Economic Committee Scheme (Aide for Healthcare products Complémentaire Santé) (Comité Economique FR des produits de Santé) ALD Long-term chronic FR illnesses (Affection de CH Switzerland Longue Durée) FR CHST Canadian Health and AME Medical Aid (Aide Social Transfer CA Médicale de l’Etat) FR CESEDA Code on Entry and AMU Urgent Medical Aid Residence of Foreign (Aide Médicale Urgente) Nationals and Right of BE Asylum (Code de ARS Regional Health l'entrée et du séjour des Agencies (Agence étrangers et du droit Régionale de Santé) FR d'asile) FR ASE Child welfare services CIRE Certificate of Inscription (Aide Sociale à in the Register of l’Enfance) FR Foreign Nationals ASEM Association for (Certificat d’Inscription Solidarity and Support au Registre des for Migrants TR Étrangers) BE AufenthG Residence Act DE CGIDD Information centre for AsylbLG Asylum Seekers’ free testing and Benefits Law DE diagnosis of sexually BBI Blood-Borne Infections transmitted infections BE Belgium (Centre gratuits BIM Increased refund of the d'information, de healthcare insurance dépistage et de (Bénéficiaire de diagnostic) FR l’Intervention Majorée) CIDDIST Information centre for BE testing and diagnosis of BMA State Medical Service sexually transmitted NL infections (Centre CA Canada d’information, de CAAMI Auxiliary Illness and dépistage et de Disability Insurance diagnostic des infections Fund (Caisse Auxiliaire sexuellement d’Assurance Maladie- transmissibles) FR Invalidité) BE CLAT Centre for Fighting CCAS Communal Centre for Tuberculosis (Centre de Social Support (Centre Lutte Anti Tuberculeuse) Communal d’Action FR Sociale) FR CLSC Local Community Services Centre (Centre

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Local de Services (Département Fédéral Communautaires) CA de l’Interieur) CH CMU Universal Medical DH Department of Health Coverage (Couverture UK Maladie Universelle) FR DOM French overseas CMUc Complementary departments Universal Medical (Département d’Outre- Coverage (Couverture Mer) FR Maladie Universelle EEA European Economic complémentaire) FR Area COA Central Agency for the EL Greece Reception of Asylum EHIC European Health Seekers (Centraal Insurance Card Orgaan opvang EOPYY National Organisation asielzoekers) NL for Healthcare Provision CoE Council of Europe EL COMEDE Medical Committee for EPIM European Programme Exiles (Comité Médical for Integration and pour les exilés) FR Migration CNAMTS National Health ES Spain Insurance Fund for ESY National Healthcare Salaried Workers System (Ethniko (Caisse Nationale Systima Ygeias) EL d’Assurance Maladie EU European Union des Travailleurs FADSP Associations Defending Salariés) FR Public Health CNS National Health Fund (Federacion de (Caisse Nationale de Asociaciones en Santé) LU Defensa de la Sanidad CPAM Primary Health Publica) ES Insurance Funds FARES The Respiratory (Caisse Primaire Diseases Fund (Fonds d’Assurance Maladie) des Affections FR Respiratoires) BE CPAS Public Social Welfare FOSI Federal Office for Social Centre (Centre Public Insurance CH d’Action Sociale) BE FR France CRAM Regional Health FSUV Fund for Vital and Insurance Funds Urgent Care (Fonds (Caisses Régionale pour les soins urgents et d’Assurance Maladie) vitaux) FR FR GIS Guaranteed Income CRC Convention on the Supplement CA Rights of the Child GHIS General Health DCO Designated Country of Insurance System TR Origin GP DE Germany GKV Statutory Health DFI Federal Department of Insurance (Gesetzliche the Interior Krankenversicherung) DE

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HAS High Authority for Health (Office luxembourgeois (Haute Autorité de de l’accueil et de Santé) FR l’intégration) LU HIV Human ONSS National Social Security Immunodeficiency Virus Office (Office National HTP Health Transformation de Sécurité Sociale) BE Programme CH OPAD Public Employees’ Fund IFHP Interim Federal Health EL Program CA NL The Netherlands IHC Individual Healthcare PASS Free Medical Centre Card ES (Permanence d’accès IKA Private Employees’ aux soins de santé) FR Fund EL PCT Primary Care Trust UK INAMI National Institute for PICUM Platform for Health and Disability International Insurance (Institut Cooperation on National d’Assurance Undocumented Migrants Maladie-Invalidité) BE PKV Private Health IND Immigration and Insurance (Private Naturalisation Service Krankenversicherung) NL DE INSS National Institute of PMI Mother and child health Social Security NL centre (Protection IRB Immigration and maternelle et infantile) Refugee Board CA FR LAMal Federal Law on PRAIDA Regional Programme for Compulsory Healthcare the Settlement and CH Integration of Asylum LAsi Asylum Law CH Seekers (Programme LETr Federal Act on Foreign Régional d’Accueil et Nationals CH d’Intégration des MARS Doctor from the Demandeurs d’Asile) Regional Health Agency CA (Médecin de l’ARS) FR RAMQ Quebec’s health MdM Doctors of the World insurance board (Régie (Médecins du monde – de l’Assurance Maladie MdM) du Québec) CA MSA Agricultural scheme RIZIV National Institute for (Mutualité Sociale Health and Disability Agricole) FR Insurance (Rijksinstituut MOI Ministry of Interior voor ziekte- en NHS National Health System invaliditeitsverzekering) UK – SE BE NEF Network of European RSI Scheme for the self- Foundations employed (Régime OAMal Health Insurance Social des Ordinance CH Indépendants) FR OGA Farmers’ Fund EL SE Sweden OLAI Luxembourg Reception and Integration Agency

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SIDEP Integrated services for screening and prevention CA SMR Therapeutic benefit evaluation system (Service Médical Rendu) FR SSI Social Security Institution (Sosyal Güvenlik Kurumu) TR STI Sexually Transmitted Infections TB Tuberculosis TLV Dental and Pharmaceutical Benefits Agency SE ToP Termination of pregnancy TPS Third-party Social Payment (tiers-payant social) LU TR Turkey UK The United Kingdom UKBA United Kingdom Border Agency UK UNCAM National Union of Health Insurance Funds (Union Nationale des Caisses d’Assurance Maladie) FR UNHCR United Nations High Commissioner for Refugees UNICEF United Nations International Children's Emergency Fund VRGT The Respiratory Healthcare and Tuberculosis Association (Vereniging voor Respiratoire Gezondheidszorg en Tuberculosebestrijding) BE

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Named after William Beveridge, this Glossary system relies on universal access to healthcare and health services EU migrants financed by the government through We call EU citizens who decide to taxes. The principle is that no-one move for any reasons to move from should live below a minimum standard their EU country to live in another EU throughout their lifetime, so healthcare country: migrants. must be free for everyone. This systems exists in UK – SE – NL – Children of asylum seekers, FR (CMU). refugees and undocumented migrants Third-country nationals We consider that no minor can be Third-country nationals are individuals considered as an asylum seeker, who are citizens of non-EU countries. refugee or undocumented migrant. In this report, we use the terms “children Undocumented EU citizens of asylum seekers”, “children of European Directive 2004/38/CE refugees” or “children of foresees that EU citizens can lose their undocumented migrants”. authorisation to reside, thereby making them, in a certain way - undocumented Privately-sponsored refugees in a Member State. Canadian citizens and permanent residents can decide to provide Article 7 of the above-mentioned additional opportunities for refugees directive states conditions living abroad to find protection and for EU citizens to obtain the right to build a new life in Canada through the reside for more than three months. Private Sponsorship of Refugees One of these is to prove that they (PSR) program. For further have sufficient resources for information, please see the guide themselves and their family about the PSR program here members, so that they will not http://www.cic.gc.ca/english/pdf/pub/ref become a burden on the welfare -sponsor.pdf system of the host Member State during their period of residence, and to The Bismarck system have comprehensive health coverage Named after the Prussian Chancellor in the host Member State. Otto von Bismarck (1815-1898), the Bismarck system is based on work and Therefore, destitute EU citizens do not financed by contributions. In 1883, he have the right to reside after three established a system where employers months in the host Member State, if pay one third and workers two thirds. they do not have sufficient resources By means of this welfare measure, he or/and health coverage. They can be succeeded to block the workers’ expelled, in the same way as applies demands about the right to vote and to third-country nationals - although divert their support for the Socialist stricter rules need to be respected by Party. the Member State – just as third- This system exists in BE – DE – ES country nationals. In this document, we (since 2012) – FR (except for CMU). refer to this group as undocumented EU citizens. The Beveridge system

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contributions, and federal government BELGIUM subsidies. Social security contributions are deducted automatically from National Health System salaries and are paid to the National Social Security Office5. Constitutional basis The details of what is covered by the Article 23 of the Belgian Constitution of mandatory health insurance organised 1994 establishes that “everyone has by the National Institute for Health and the right to lead a life in keeping with Disability Insurance (INAMI (in French) human dignity […]To this end, the or RIZIV (in Dutch)) is determined by a laws, federate laws and rules referred scale (INAMI nomenclature). to in Article 134 guarantee economic, social and cultural rights, taking into RIZIV-INAMI oversees the general account corresponding obligations, organisation of the compulsory health and determine the conditions for insurance; however, the task of exercising them. These rights include actually providing insurance falls to the among others: the right to social sickness funds. These are non-profit security, to and to social, organisations with a public interest medical and legal aid” 3. mission and receive the majority of their financial resources from RIZIV- Organisation and funding of Belgian INAMI6. healthcare system For the general scheme for employed Belgium has a complex state structure persons, the National Social Security which has an impact on the national Office (Office National de Sécurité health system. Indeed, health Sociale – ONSS) collects and competences are shared between the administers payroll taxes and federal government (curative care) and employment taxes. Then, the ONSS federated entities (prevention). distributes the contributions between health insurance companies. These The Belgian health system is based on are all private health insurance the principles of equal access and companies, called “mutualités” freedom of choice (health providers, (mutuals) or “sickness funds” except mutuals) for individuals with health for one public health insurance coverage, with a Bismarckian type of company called the Auxiliary Illness compulsory national health insurance, and Disability Insurance Fund (Caisse which covers the whole population and Auxiliaire d’Assurance Maladie- has a very broad benefits package4. Invalidité – CAAMI). The auxiliary fund The national health system consists of is available for people who don’t wish a mix of private and public actors and to join one of the other mutuals. is funded by employer and employee The mutuals take care of the reimbursement of medical expenses. 3 Constitution of Belgium 1994 (last updated 8 In practice, for most medical expenses, May 2007), http://home.scarlet.be/dirkvanheule/compcons/ ConstitutionBelgium/ConstitutionBelgium.htm 4 S. Gerkens and S. Merkur, “Belgium: Health system review”, Health Systems in Transition, vol. 12, No. 5, xvi, 2010, 5 http://belgium.angloinfo.com/money/social- http://www.euro.who.int/__data/assets/pdf_file/ security/ 0014/120425/E94245.PDF 6 Op. cit. note 4

 Page 13 BELGIUM patients are only responsible for small vary from one mutual health coverage co-payments for drugs and transport7. fund to another, from €30 to €25010. Although there are several health An alternative for destitute people insurance companies, the social (provided they have permission to security system reimburses them reside) is to be affiliated to the CAAMI, equally for medical services. which costs €2.25 per year for the Competition between mutual health head of the family (dependent family insurance funds, therefore, is based on members pay nothing). The CAAMI the quality of services provided and on provides access to all services covered their complementary service offer. by the RIZIV-INAMI nomenclature, but not to any supplementary services11. With the law of 26 April 20108, which came into effect on 1 January 2012, Accessing Belgium healthcare individuals affiliated to one of the system mutuals are obliged to subscribe to Nationals and authorised residents in supplementary activities and services, Belgium must register with a health such as prevention or welfare services, insurance company of their choice. by paying a contribution if these They pay contributions for their services are offered by the sickness membership as well as a fixed amount fund (orthodontic treatments, established by law for the cost of the homeopathic care, birth grants, etc.). services. Article 67 of the 2010 Law mentions Nationals and authorised residents that no segmentation of contributions must pay in advance for the medical is allowed but there can be consultation fees charged by the differentiation based on household doctor or hospital. They must submit composition or social status, in their receipts for reimbursement and accordance with Article 37 of the Law the money is then paid directly into the of 14 July 1994 on compulsory medical 9 claimant’s bank account. In general, care and sickness benefit insurance . the cost of a GP consultation is Moreover, the annual contribution may €24.48. The health insurance company reimburses €18.48 leaving €6 paid by the patient12. It should be noted that some individuals, depending on their means, pay less for most medical services: “BIM status” and “OMNIO 7 W. Van Biesen, N. Lameire, P. Peeters, R. status”13. The local public social Vanholder, “Belgium’s mixed private/public welfare centre (Centre Public d’Action health care system and its impact on the cost of end-stage renal disease”, the International Journal of Health Care Finance and Economics, 2007, 10 L. Baekelandt, « La cotisation de mutuelle http://www.dopps.org/doppscd/pdf/VanBiesen- est désormais obligatoire », Plusmagazine.be, ISHCOF-Belgium-2007.pdf, (accessed 25 26 January 2012, March 2015). http://plusmagazine.levif.be/fr/011-1548-La- 8 Law of 26 April 2010, cotisation-de-mutuelle-est- http://www.ejustice.just.fgov.be/cgi_loi/change desormaisobligatoire.html _lg.pl?language=fr&la=F&cn=2010042607&tab 11 http://www.caami-hziv.fgov.be/Model4-10- le_name=loi F.htm 9 Law of 14 July 1994, 12 Ibid. http://www.ejustice.just.fgov.be/cgi_loi/change 13 _lg.pl?language=fr&la=F&cn=1994071438&tab http://www.belgium.be/fr/sante/cout_des_soins le_name=loi /remboursements_specifiques/

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Sociale – CPAS) may also decide – in categories of drugs have been their internal policy – to contribute to defined16. the medical costs of authorised residents who are too destitute to pay Access to healthcare for for important health expenses. migrants To join a health insurance company, a membership application must be Asylum seekers, refugees and those eligible for subsidiary submitted to one of the mutuals or the 17 CAAMI. Being private organisations, protection the mutuals may refuse membership to The 2007 law on the reception of an applicant. The public fund, asylum seekers and other categories however, may not refuse membership of foreign nationals and stateless to an applicant. This guarantees the people defines the entitlement of availability of health insurance to all asylum seekers to medical care. Belgians. The individual is bound by According to this law, all asylum their choice of mutual or the CAAMI for seekers are entitled to health services a one-year period. Obviously, one in order to guarantee them a life in advantage is that if affiliated members conditions of human dignity. Access to become undocumented, they keep healthcare services is based on the their healthcare coverage for up to a RIZIV-INAMI nomenclature with two year after their last payment. exceptions: Dependent children are bound by their parents’ choice.  Healthcare services which are listed in the RIZIV-INAMI The contents of the mandatory health nomenclature but not applicable insurance organised by RIZIV-INAMI is to asylum seekers because determined by the RIZIV-INAMI these services are not nomenclature14, which lists over 8,000 considered as necessary in partially or totally reimbursable order to lead a life in conditions services. RIZIV-INAMI contributes to of human dignity (orthodontics, the cost of medication to different infertility treatment, etc.) degrees, according to medical necessity (the degree of seriousness of the pathology in the absence of 15 treatment) and has also frozen the 16 Category A: drugs of vital importance prices of essential drugs. Thus, six (cancer or diabetes treatment); category B: therapy treatment (antibiotics); category C: drugs with symptoms effects; category Cs: vaccine against flu; category Cx: contraceptives; category D: drugs considered not “essential” and consequently not 14 reimbursable such as vitamins, but also http://www.inami.fgov.be/fr/nomenclature/nom paracetamol. All patients, including those on a enclature/Pages/default.aspx#.VL5oNkeG_94 low income, must pay the full cost of D 15 I. Cleemput and al., « Détermination du medication, whatever aid mechanism they ticket modérateur en fonction de la valeur benefit from. sociétale de la prestation ou du produit », 17 Anyone who is not entitled, does not Health Services Research (HSR), Bruxelles : respond, according to the Belgian asylum Centre Fédéral d’Expertise des Soins de Santé authorities, to asylum in the refugee definition (KCE), KCE Report 186BS, 2012. may nevertheless be eligible for subsidiary https://kce.fgov.be/sites/default/files/page_doc protection if he/she is actually exposed to uments/KCE_186B_determination_ticket_mod serious threats if he/she returned to their erateur_synthese_second_print_0.pdf country of origin.

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 Healthcare services which are postnatal care as authorised residents. not listed in the RIZIV-INAMI They also have access to free nomenclature but are granted to termination of pregnancy (ToP) within asylum seekers as they are part the legal period (up to 12 weeks). of daily life (certain Category D drugs, glasses for children, Children of asylum seekers and etc.). refugees Children of asylum seekers and While living in a reception centre, children of refugees have access to asylum seekers’ medical expenses are vaccinations as authorised residents normally covered by Fedasil or one of under the RIZIV-INAMI scheme. its reception partners. If they don’t live in a centre (“no shows”)18, they must Undocumented migrants obtain a “payment warranty” In Belgium, undocumented migrants (“réquisitoire”) before they can receive have access to healthcare through the care and treatment without having to Urgent Medical Aid (Aide Médicale pay. If they do not obtain this “payment Urgente – AMU) specified in the Royal warranty”, the doctor must attach a Decree of 12 December 1996 relating certificate to their bill, to prove that the to “urgent medical assistance granted treatment was necessary. The by the CPAS to foreign nationals administrative procedure is quite residing in Belgium illegally”22. Despite complicated and many healthcare its name, AMU covers both preventive providers are unfamiliar with it. and curative care, and individuals Individuals who go through the asylum entitled to this medical coverage must procedure and obtain protection in be granted access to health services Belgium under the UN Refugee beyond emergency care. Convention of 1951 are described as 19 Obtaining AMU is subject to three “recognised refugees” . They receive conditions. The individual must: a Certificate of Inscription in the Register of Foreign Nationals  Obtain a medical certificate (Certificat d’Inscription au Registre des proving health needs signed by Étrangers – CIRE) which remains valid a doctor; for one year and is renewable on  Prove their place of residence in 20 request . The CIRE gives them a municipality; entitlement to health insurance under  After having obtained a medical 21 the RIZIV-INAMI scheme . certificate, prove lack of financial resources through a Pregnant asylum seekers and mandatory social inquiry from refugees the CPAS. Pregnant women seeking asylum or who have obtained refugee status The CPAS must check whether the have access to antenatal, delivery and claimant is undocumented, regardless of how they entered Belgium. The

claimant is asked many questions: on 18 Asylum seekers who are not living in a arrival conditions (illegally, visa, etc.) reception structure are called “no shows”. 19 http://www.medimmigrant.be/index.asp?idberic ht=193&idmenu=2&lang=fr 22 Royal Decree of 12 December 1996, 20 Ibid. http://www.miis.be/sites/default/files/doc/KB%2 21 Op. cit. note 19 01996-12-12.pdf

 Page 16 BELGIUM and on administrative formalities in sufficient evidence of place of Belgium (request for regularisation, residence24. asylum, etc.). Questions may vary considerably from one CPAS to In practice, this freedom concerning another. Next the CPAS will claim the assessment at the discretion of each medical certificate (template CPAS seems to be a source of document) in order to prove health insecurity for applicants, as there is no needs. This document is compulsory in visibility concerning the criteria used to order for the health assess their situation. It also means provider/pharmacist to obtain that there is systematic discrimination, reimbursement. The CPAS must check based on where in Belgium an the place of stay through a home visit. undocumented patient lives. The circular of 25 March 201023 on the Based on the above, this mandatory social investigation required for the social investigation is very intrusive in reimbursement of medical charges the claimant’s life and in the life of specifies that each CPAS must those who host them. It often prevents understand how it can establish the individuals entitled to the AMU from destitute situation of the claimant. On submitting a request to benefit from it. this point, the law is not sufficiently At the same time, the CPAS, such as precise and leaves room for arbitrary the one in Antwerp, often refuses AMU treatment. due to applicants’ alleged refusal to collaborate with the social During the home visit, the CPAS investigation. representative requests personal documents, such as the lease, rent If all these conditions are fulfilled, the receipts, invoices and certificate from claimant may benefit from healthcare cohabitants, etc. The circular notes coverage (AMU). The parameters of that the CPAS may conduct its this coverage, such as the period for investigation by the means it judges which AMU is granted (ranging from appropriate. An important barrier to one consultation to three months of accessing healthcare is that the social continuous care), which (local) investigation can take up to a month healthcare providers can be consulted (as defined by law). Obviously, many and how to ask a healthcare provider health problems will have become for care or treatment are defined by the much more serious after such a long specific CPAS concerned. period of time. Overall, once an undocumented Moreover, many undocumented migrant is entitled to AMU, their migrants have difficulty proving their healthcare expenses will be directly “place of residence”, particularly if they reimbursed to health professionals by are staying with friends, in churches, in the CPAS. Afterwards, the federal shelters or are homeless. Often authorities reimburse the CPAS for all considerable discretion is exercised at medical treatments except for those local level to decide what constitutes which do not have a RIZIV-INAMI nomenclature code.

24 European Union Agency for Fundamental 23 Circular of 25 March 2010, Rights (FRA), Migrants in an irregular situation: http://www.ejustice.just.fgov.be/cgi/api2.pl?lg=f access to healthcare in 10 European Union r&pd=2010-05-06&numac=2010011203 Member States, Luxembourg, 2011.

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Often healthcare providers refuse to preventive, primary and secondary treat an undocumented migrant who health services, including maternal has a medical card granted from a care. CPAS in another region, because the CPAS might not reimburse the costs of Undocumented pregnant women must care25. If a person makes an have full free access to antenatal and appointment with a doctor before postnatal care as authorised residents receiving the certificate from the CPAS if they have obtained AMU. Postnatal they must pay for the appointment follow-up care is financed and themselves and the CPAS often organised by the federated entities: the refuses to reimburse the costs Birth and Childhood Office (Office de la because it did not agree to the Naissance et de l’Enfance in the appointment and had not yet granted French community) and Child and AMU. Some CPAS collaborate with Family (Kind en Gezin) in the Flemish doctors in order to make the process Community). Access to Community- easier for patients but others do not financed postnatal consultations is free make such an effort26. of charge for all women. However, this does not include antenatal ultrasound, In addition, the Law of 30 December blood tests, nor curative interventions, 200927, followed by the circular quoted which all require AMU. The same above, states that in the case of AMU barriers apply for pregnant women and requests, social investigations must be children as for other AMU claimants. systematic. These provisions added the following subsection to Article 11 The CPAS, often due to unwillingness Section 1 of 2 April 1965 on the or lack of awareness, impede access funding of healthcare provided by the to health services for undocumented CPAS: “the reimbursement of the migrants, including pregnant women, charges specified in the when they refuse to grant AMU. For aforementioned Article 4 may only be instance, the social welfare centre of made if a social investigation carried Antwerp, the country’s second biggest out beforehand certifies the existence city, has for many years been and extent of the need for social extremely restrictive in its interpretation assistance28”. of national law. Undocumented pregnant women However, since May 2012, a platform of local healthcare workers and As mentioned above, the Royal decree organisations, migrant and medical refers to “urgent care”, a term that NGOs, as well as academics, under might well be misleading as they the leadership of Doctors of the World encompass a broad range of – Médecins du Monde (MdM), has negotiated a partnership with this local welfare centre, in order to ensure that 25 Ibid. 26 Platform for International Cooperation on all pregnant women get early access to Undocumented Migrants (PICUM), antenatal care. As a result, the welfare Undocumented Migrants’ Health Needs and centre has designated two contact Strategies to Access Health Care in 17 EU persons who should be able to provide countries, Country Report Belgium, June 2010, antenatal and postnatal welfare follow- http://files.nowhereland.info/706.pdf 27 Law of 30 December 2009, up for undocumented women. http://www.ejustice.just.fgov.be/cgi_loi/change _lg.pl?language=fr&la=F&cn=2009123001&tab With regard to pregnancy termination, le_name=loi this is a service covered by AMU. 28 Ibid.

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However, pregnant women must their healthcare system for respect the legal period of 12 weeks of undocumented migrants. Yet for many pregnancy for termination, even CPAS, this right remains merely though the CPAS response to the theoretical, as EU citizens are faced AMU application usually comes one with several administrative barriers. 29 month later . In practice, between the 31 pregnancy being certified and AMU The Law of 19 January 2012 being granted, those 12 weeks have confirmed the practices of a majority of already passed. CPAS: access to healthcare for destitute EU migrants was restricted. Therefore, pregnant women usually This law, modifying legislation relating prefer to try and find the money for the to the reception of asylum seekers, termination and pay it directly to the adds Article 57quinquies to the practitioner, whereas they should be Organic Law of 8 July 197632 relating covered by the AMU scheme30. to CPAS centres, according to which: If they succeed in being covered by “Notwithstanding the provision of this AMU, they pay €1.72 for the law, the centre is not obliged to preliminary examination and €1.72 for provide social assistance to the medical procedure. For pregnant European Union Member State women who do not have health nationals or members of their coverage, termination of pregnancy families during the first three costs €460. months of their stay or, if applicable, during the longer period provided for in Children of undocumented migrants Article 40, Section 4, Subsection 1, of The Royal Decree of 12 December the law of 15 December 1980 on 1996 includes children in AMU. They access to the territory, residence, are entitled to the same healthcare as establishment and return of foreign undocumented adults. They must nationals, neither is it obliged, prior to obtain AMU in order to gain access to the acquisition of the right of curative healthcare. permanent residence, to grant maintenance assistance.” This legal As regards preventive healthcare, provision came into force in February everyone has free access to 2012. vaccinations through the Birth and 33 Childhood Office but only until the age However, on 30 June 2014 , the of six. After the age of six, they must Constitutional Court of Belgium ruled obtain AMU like adults for all curative that Article 12 of the Law of 19 January and preventive care. 2012 breaches Article 10 and 11 of the Constitution in that it allows CPAS to EU citizens

France and Belgium are the only member states to include – under strict 31 Law of 19 January 2012, conditions – destitute EU migrants in http://www.ejustice.just.fgov.be/cgi_loi/change _lg.pl?language=fr&la=F&table_name=loi&cn= 2012011913 32 Law of 8 July 1976, 29 http://www.ejustice.just.fgov.be/cgi_loi/change http://www.viefeminine.be/spip.php?article270 _lg.pl?language=fr&la=F&cn=1976070801&tab 1 le_name=loi 30 INAMI, Kluwer a Wolters Kluwer Business, 33 Judgement of the Constitutional Court, 30 Médecins du Monde, Livre vert sur l’accès aux June 2014, http://www.const- soins en Belgique, Waterloo, 2014. court.be/public/f/2014/2014-095f.pdf

 Page 19 BELGIUM refuse AMU to EU citizens during the have access to AMU as first three months of their stay in undocumented migrants. As discussed Belgium. Indeed, this measure creates above, undocumented migrants are a difference of treatment which is already facing issues in accessing discriminatory to EU citizens and their AMU. Thus, it seems to be very family members, since they cannot complicated for pregnant women to claim for AMU to CPAS, whereas gain access to antenatal and postnatal undocumented migrants in Belgium care and for children to gain access to can benefit from AMU. This judgment vaccination after the age of six. is directly binding and so partially abolished the interpretation of Article Moreover, regarding access to 57quinquies of the Law of 8 July 1976 termination of pregnancy for pregnant modified by the Law of 19 January women who are EU citizens, this 2012. seems to be a veritable obstacle course. For the first three months of Since then, a circular of 5 August their stay they are considered as 201434 has been adopted in order to tourists; they quickly exceed the legal warn CPAS presidents about the new period of 12 weeks and then do not interpretation of Article 57quinquies. have access to termination. Their only option is to travel to the Netherlands, The Constitutional Court considers that where the legal period for pregnancy Article 57quinquies must be read as termination is set at 24 weeks, if the follow: woman is in distress, and pay for a termination out of their own pocket.  Persons who fall within the scope of this article are not Unaccompanied minors precluded from the right to AMU; Initially, the law made a distinction  EU citizens residing in Belgium, between unaccompanied EU minors whether or not they are and unaccompanied minors from non- employed, are not temporarily EU countries. The protection granted precluded from the right to to third-country-national social aid. unaccompanied minors was much greater than that for unaccompanied Therefore, in the light of this judgment, EU minors. EU migrants in Belgium must have As a result of the Constitutional Court’s access to AMU during the first three judgment of 18 July 2013, the law of months of their stay. In practice, the 12 May 201435 was adopted and CPAS are still not applying the new modified the Programme Law of 24 interpretation of Article 57quinquies December 200236. This law added a and are thus violating the Belgian new Article 5/1 without prejudice to Constitution. Article 5 of the Programme Law So, in practice, pregnant women and providing for the guardianship of third- children who are EU citizens should

35 Law of 12 May 2014, 34 Circular of 5 August 2014, http://www.ejustice.just.fgov.be/mopdf/2014/11 http://www.ejustice.just.fgov.be/cgi_loi/loi_a1.pl /21_1.pdf#Page18 ?sql=%28text%20contains%20%28%27%27% 36 Programme Law of 24 December 2002, 29%29&language=fr&rech=1&tri=dd%20AS%2 http://www.ejustice.just.fgov.be/cgi_loi/change 0RANK&value=&table_name=loi&F=&cn=2014 _lg.pl?language=fr&la=F&cn=2002122445&tab 080501&caller=image_a1&fromtab=loi&la=F le_name=loi

 Page 20 BELGIUM country unaccompanied minors. Article country of origin or the country where 5/1 provides that the guardianship they are resident. referred to in Article 3, §1st, al 1st shall apply to “nationals of European Indeed, according Article 9ter of the Economic Area (EEA) countries”. Law of 15 December 1980 on access to Belgium, residence, establishment Thus, whether the unaccompanied and return of foreign nationals37, “a minors are EU citizens or not, they foreign national residing in Belgium have the same protection under who proves his/her identity in Belgian law. Article 10§1 of the Law of accordance with §2 and who suffers 24 December 2014 states that “the from a disease which causes a real guardian ensures that the minor goes risk to his/her life or physical integrity to school and receives psychological or a real risk of inhuman or degrading support and appropriate medical care”. treatment if there is no adequate treatment in his/her country of origin or Therefore, unaccompanied minors in the country where s/he stays can have access to healthcare under the request a residence permit for Belgium RIZIV-INAMI scheme. from the Minister or his/her representative (…) The foreign Moreover, the 25 July 2008 circular national delivers with the applications determines the conditions for access to all relevant and recent information health coverage for third-country regarding his/her illness and the unaccompanied minors (and, since possibility of and access to adequate 2014, for unaccompanied minors from treatment in his/her country of origin or an EEA country since 2014): in the country where s/he stays”.  Going to school for three This procedure includes two very long consecutive months at an phases: the admissibility of the educational establishment application and the substantive recognised by a Belgian decision. authority;  Being registered at a Birth and The admissibility of the application Childhood Office or registered at an establishment of A representative of the Immigration preschool education; Office (Office des étrangers/  The minor is not required to go Vreemdelingenzaken) examines to school by the competent whether the formal requirements for regional service. the submission of the application are met (proof of identity, medical Consequently, the government certificate issued less than three excludes unaccompanied minors, months ago clearly indicating the especially older ones, because they condition, its severity and estimated have to wait three months before treatment needed, etc.). Once the accessing to healthcare. request has been submitted, the medical officer of the Immigration Protection of seriously ill Office is responsible, since the foreign nationals introduction of a medical filter in

In Belgium, by law, seriously ill foreign nationals benefit from special 37 Law of 15 December 1980, protection which prevents the http://www.ejustice.just.fgov.be/cgi_loi/change authorities from expelling them to their _lg.pl?language=fr&la=F&cn=1980121530&tab le_name=loi

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February 2012, for assessing whether CPAS if they are destitute. the illness is serious enough. If the Alternatively, the individual will be condition clearly does not meet the issued with a reasoned negative threshold of gravity, that is to say, it decision and an order to leave does not cause a real risk to life or Belgium. The individual can appeal the physical integrity or risk of inhuman or decision to the Council for Aliens Law degrading treatment, the application of Litigation (Conseil du Contentieux des Article 9ter may be declared Etrangers). inadmissible. In the judgment of the Court of Justice If the application is deemed complete, of the European Union (Grand passes the medical filter and the Chamber) of 18 December 201438, the residential investigation conducted by Court rules that Article 9ter of the Law the municipality is positive (it means of 15 December 1980 violates that homeless people cannot apply for Directive 2008/115/EC of the 9ter) the Immigration Office declares European Parliament and of the Article 9ter admissible and issues a Council of 16 December 2008 on certificate of registration, known as an common standards and procedures in “Orange Card” for three months. This Member States for returning illegally certificate can be renewed three times staying third-country nationals. for a further three months and then every month until a substantive Indeed, Article 9ter violates the decision is taken by the Immigration Directive because it does not grant a Office. This card does not entitle the suspensive effect to the appeal holder to access a health insurance against a negative decision which fund or employment. However, the orders a seriously ill third-country holder can request AMU from the national to leave the territory of a CPAS of their place of residence. Member State, when the execution of the decision may expose the third- The substantive decision country national to a substantial risk of serious and irreversible damage to The Immigration Office examines their health; and because the law does whether the necessary treatment for not provide, as far as possible, the the individual’s condition is available in support of basic needs to the third- their country of origin or in the country country national in order to ensure where they are resident. In theory, this that emergency medical care and involves a review of the availability but essential treatment of diseases can also the accessibility of the treatment. be effectively provided during the If the administration and the medical period in which the Member State shall officer judge that the treatment is not postpone the expulsion of the same available or not accessible, a one-year third-country national following the residence permit is granted. In appeal of the decision. practice, the Immigration Office bases its decision on the degree of severity of the illness. The foreign national must be extremely ill to be granted a one- year residence permit under Article 38 Centre public d’action sociale d’Ottignies- 9ter. This residence permit enables the Louvain-la-Neuve v Moussa Abdida, 18 December 2014, Judgement of the Court of holder to join a health insurance fund, Justice of the European Union (Grand to access the labour market and to Chamber), benefit from social assistance from the http://curia.europa.eu/juris/celex.jsf?celex=620 13CJ0562&lang1=fr&type=TXT&ancre

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Thus, since this judgment, the appeal women who have failed to overcome against a negative decision from the these hurdles, despite being Human Immigration Office is suspensive. It Immunodeficiency Virus (HIV) positive. means that seriously ill foreign nationals who appeal the decision must still benefit from AMU during the appeal.

Prevention and treatment of infectious diseases The Royal Decree of 1 March 1971 on the prevention of contagious diseases covers the list of notifiable diseases on Belgian territory. The Respiratory Diseases Fund (Fonds des Affections Respiratoires – FARES) and the Respiratory Healthcare and Tuberculosis Association (Vereniging voor Respiratoire Gezondheidszorg en Tuberculosebestrijding – VRGT) offer free screening for tuberculosis to all those who request it (without taking into account residence status) and provide free treatment and follow-up in the case of a positive result. A number of referral centres offer Sexually Transmitted Infections (STI) screening upon request. Although screening is free (and anonymous) for anyone without medical insurance, these centres are now obliged to check systematically whether the patient has medical insurance, which is an additional threshold. Furthermore, most of these referral centres cannot guarantee the provision of treatment if the individual does not have access to healthcare. Concerning AMU, the regular barriers apply: being able to provide a residential address and all the possible documents a CPAS might demand during its social investigation, etc. In recent years, the MdM Antwerp team and their partners have already observed undocumented pregnant

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several other functions, including CANADA (QUEBEC) financing and providing primary and supplementary services to certain National Health System groups of people. These groups include First Nations people living on Organisation and funding of reserves, Inuit, Canadian Armed Canadian healthcare system Forces, eligible veterans, inmates in federal penitentiaries and some 40 is a publicly refugee groups of applicants . funded system, unofficially called “Medicare”. It is guided by the Canada Instead of having a single national Health Act of 1984, but largely plan, Canada’s healthcare programme determined by the Constitution of is made up of provincial and territorial Canada in which roles and health insurance plans, all of which responsibilities are divided between share certain common features and the federal, provincial and territorial standards such as “their universality and their accessibility”41. governments. This is a mixed public-private system Accessing Canada healthcare that provides health coverage to all system Canadian citizens and permanent residents (some provinces such as To be covered by Canada’s healthcare Quebec enforce a waiting time of three system involves first applying for a months for newly arrived permanent provincial health insurance card. The residents). Indeed, almost all Canada Health Act requires all healthcare services are delivered by residents of a province or territory to the private sector and the public sector be accepted for health coverage, is responsible for financing those excluding prison inmates, the services. Canadian Armed Forces and certain members of the Royal Canadian Publicly funded healthcare is financed Mounted Police42. with general revenue raised at federal, 39 provincial and territorial levels . The Thus, new residents in a particular federal government provides funding to province must apply for health provinces and territories for healthcare coverage. Upon being granted it, a services through fiscal transfers via the health card is issued which provides Canadian Health and Social Transfer health coverage in that particular (CHST). Transfer payments are made province or territory43. as a combination of tax transfers and cash contributions from the However, the main constraint for new government. residents is the waiting period that

The federal government’s role in healthcare is to establish and implement national principles for the 40 http://www.hc-sc.gc.ca/hcs- system under the Canada Health Act sss/pubs/system-regime/2011-hcs-sss/index- eng.php to provide financial support to 41 provinces and territories and fulfil http://www.cic.gc.ca/english/newcomers/after- health.asp 42 http://www.canadian-healthcare.org/ 39 http://www.hc-sc.gc.ca/index-eng.php 43 Ibid.

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44 generally takes three months before Accessing Quebec healthcare health coverage will be granted. Thus, system during this waiting period, new residents have to pay out of pocket to In order to ensure free access to have access to healthcare, even for healthcare in Quebec, the provincial emergency care (some exceptions government created Quebec’s health apply; antenatal care, for example in insurance board (Régie de l’Assurance the Quebec province, is covered Maladie du Québec – RAMQ). The during the waiting period). government’s goal was to respond to the needs of its citizens and residents, Under the healthcare system, citizens and implement its own health and and permanent residents are provided social welfare policies in line with the with preventive care and medical spirit of the federal policies49. treatments from primary care physicians, as well as with access to Quebec’s health insurance board hospitals and additional medical 45 administrates the public health and services . In addition to standard prescription drug insurance plans. health coverage as described in the Canada Health Act, provinces may The public health insurance plan provide additional services which can aims to deliver free medical services in include physiotherapy care, dental 46 public hospitals and local community care and some medicines . The service centres to RAMQ’s province of Quebec does not provide beneficiaries. Individuals covered by dental healthcare except to certain public health insurance have to groups of the population, mainly present their health insurance card to beneficiaries of last resort social benefit from free coverage. If a person assistance schemes. with health coverage does not present their health insurance card or if the Most provincial and territorial card has expired, they must pay for the governments offer and fund healthcare services they receive and supplementary benefits for certain then apply to Quebec’s health groups, especially low-income insurance board for a reimbursement. residents,47 such as drugs prescribed outside hospitals, ambulance costs, People arriving from another province and hearing, vision and dental care to take up residence in Quebec that are not covered under the Canada become eligible for the Quebec Health Health Act48. Insurance Plan when they cease to be covered by the plan of their province of origin50. As authorised residents settling in Quebec, nationals have to

44 wait three months during which they This period varies according to the can benefit freely from some services. beneficiary. There are exceptions to the application of this waiting period for services For as long as they remain covered by related to pregnancy, delivery, termination of pregnancy; necessary services to victims of the health insurance plan of their domestic or family violence, or sexual assault; former province, they must present services needed by individuals with infectious diseases that affect public health. 45 Op. Cit. note 42 49 46 Op. Cit. note 42 http://www.ramq.gouv.qc.ca/en/regie/Pages/mi 47 Op. cit. note 40 ssion.aspx 48 Op. cit. note 40 50 Ibid.

 Page 25 CANADA their health insurance card from that the form of regular payroll deductions province when receiving healthcare throughout the year. from a doctor in Quebec51. The health insurance plan of their former province Generally speaking, people covered by will cover the costs. However, if the the public plan must pay a premium Quebec doctor does not accept that (between €0 and €430 from 1 July card, they will have to pay the doctor’s 2014 to 30 June 2015)54, whether or fees and then apply for a refund with not they purchase prescription drugs55. the organisation administering the health insurance plan of their province Certain people covered by the public of origin52. In Quebec, a general health coverage plan do not pay a practitioner’s consultation fees vary premium. These include: from €50 to €140.  individuals aged 65 or over If an individual is covered by public or receiving 94% to 100% private health insurance, they do not Guaranteed Income pay doctor’s fees in advance. Instead, Supplement (GIS)56; the doctor charges Quebec’s health  holders of a claim slip and their insurance board directly. However, if children under the age of 1857; an individual has no health coverage, s/he has to pay doctor’s fees.

The prescription drug insurance plan has been compulsory for 54 If a summary of costs is necessary, please everyone in Quebec since 1997. see Indeed, they must be covered by http://www.ramq.gouv.qc.ca/en/citizens/prescri prescription drug insurance, either ption-drug-insurance/Pages/summary- costs.aspx through the public plan or by private 55 plans53. http://www.ramq.gouv.qc.ca/en/citizens/prescri ption-drug-insurance/Pages/annual- The private plans are usually available premium.aspx in the form of group insurance or 56 The Guaranteed Income Supplement (GIS) employee benefit plans. Individuals is an amount added to the Old Age Security may be eligible for a private plan Pension (OASP) and is paid at the same time as that pension to certain people age 65 or through employment, membership of a over. A person may receive the maximum GIS professional order or association, their (100%), a partial GIS or no GIS (0%), spouse or parents. Anyone who is not depending on the family income. In each case, the contribution to the public plan differs (GIS). eligible for private plans has to join the 57 public plan administered by Quebec’s This specific benefit is delivered to the beneficiary of a claim slip renewable every health insurance board. month. The beneficiary can obtain the prescription drugs that he/she or his/her family People insured with a private plan needs, presenting this diary to a pharmacist of must pay a premium, whether or not his/her choice. Specific benefits covered by the they purchase prescription drugs. In claim slip, which includes drugs, optometric services, dental services and acrylic dentures, most cases, they pay the premium in are not accessible to asylum seekers because they have no access to the RAMQ services. A claim slip may also be issued to people whose income exceeds the amount of recognized needs, but is insufficient to cover the drugs 51 Op. cit. note 49 they need, http://www.mess.gouv.qc.ca/regles- 52 Op. cit. note 49 normatives/b-aides-financieres/05-prestations- 53 Op. cit. note 49 speciales/05.01.05.html

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 newborn children whose  Type 3, Basic and Public Health parents are covered by the or Public Safety Prescription public plan. Drug Coverage  Type 4, Public Health or Public Access to healthcare for Safety Basic Coverage and migrants Public Health or Public Safety Prescription Drug Coverage  Type 5, Coverage for persons Asylum seekers and refugees detained under the Immigration It should be noted that individuals who and Refugee Protection Act are Quebec residents and who have  Type 6, Coverage for the been granted refugee status are Immigration Medical qualified for RAMQ and thus have the Examination same access to healthcare as nationals and authorised residents. It should be noted that, in theory, the IFHP beneficiaries do not have to pay Interim Federal Health Program (IFHP) for medical consultations in advance. The primary purpose of this In practice, medical doctors usually programme is to provide limited, make them pay because the temporary coverage of health-care reimbursement process is particularly costs for specific groups of people58, complex. such as protected persons59, asylum seekers, rejected refugee claimants IFHP beneficiaries who pay doctor’s before their expulsion date60, etc. fees in advance, contrary to RAMQ beneficiaries who can be reimbursed The IFHP offers six types of coverage: by the government if they forget their health card, cannot be reimbursed if  Type 1, Basic, Supplemental they forgot their IFHP document or if it and Prescription Drug Coverage has expired.  Type 2, Basic and Prescription Drug Coverage In general, asylum seekers have to deal with many issues regarding access to healthcare even if they are 58 eligible for the IFHP. Indeed, it often http://www.cic.gc.ca/english/information/applic happens that hospitals and doctors ations/guides/5568ETOC.asp#5568E2 59 Immigration and Refugee Protection Act, refuse to treat individuals with a valid 2001, section 95(2): “A protected person is a IFHP or require payment in advance. person on whom refugee protection is Asylum seekers also have to deal with conferred under subsection (1), and whose IFHP renewal issues. They lose claim or application has not subsequently been access to public healthcare as soon as deemed to be rejected under subsection 108(3), 109(3) or 114(4)”. their IFHP document expires. http://laws-lois.justice.gc.ca/eng/acts/I-2.5/ 60 It means a person: Pregnant asylum seekers  whose claim for refugee protection has been All pregnant women eligible for the finally rejected by the Immigration Refugee IFHP can benefit from Type 2 Board and whose right to judicial review, or any appeal of that judicial review, in respect of coverage, which includes basic 61 that claim has been exhausted; or coverage and prescription drug  whose claim is deemed to be rejected under subsections 105(3), 108(3) or 109(3) of the Immigration and Refugee Protection Act. 61 In-patient and outpatient hospital services, http://www.cic.gc.ca/english/department/laws- services of medical doctors, registered nurses policy/ifhp.asp and other health-care professionals licensed in

 Page 27 CANADA coverage62. This coverage lasts for the which provides temporary health term of the pregnancy plus an benefits to asylum seekers, rejected additional two months. They also have refugee claimants, etc. in Canada. The the same access to pregnancy drastic changes to the IFHP, which termination as nationals with health came into effect on 30 June 2012, coverage. considerably limited access to healthcare for the groups concerned66. Children of asylum seekers First of all, protected persons and Children eligible for the IFHP who are less than 19 years old can benefit from refugee claimants where a decision Type 1 coverage which includes basic has not yet been made or is under coverage63, supplemental coverage64 appeal and who are not nationals of a and prescription drug coverage65. This designated “safe” country of origin coverage, which also includes (non- DCO) continued to receive basic vaccination, lasts for as long as they health coverage. Medications and remain eligible for the IFHP and are immunisations were covered only if under 19 years of age. they were required to prevent or treat diseases which pose a risk to public 67 Reforms health or safety .

IFHP reforms background Secondly, rejected refugee claimants (even those who cannot be expelled In April 2012, the federal government from Canada) and refugee claimants announced changes to the IFHP, where a decision has not yet been made and who are nationals of a designated “safe” country of origin Canada, including pre and postnatal care, 68 laboratory, diagnostic and ambulance services. (DCO) , including those whose initial http://www.cic.gc.ca/english/refugees/outside/a claims have been rejected and still rriving-healthcare/individuals/apply-who.asp have appeal options, which may take 62 several years, were not eligible to https://www.medavie.bluecross.ca/cs/BlobServ basic healthcare, including emergency er?blobcol=urldata&blobtable=MungoBlobs&bl 69 obheadervalue2=abinary;+charset=UTF- care . They only had access to 8&blobheadername2=MDT- Type&blobkey=id&blobwhere=1187213211285 &blobheader=application/pdf 66 R. Goel, “Federal reversal of refugee health 63 In-patient and outpatient hospital services, cuts still leaves many uncovered”, Health services of medical doctors, registered nurses Debate, 2014, and other health care professionals licensed in http://healthydebate.ca/opinions/reversal-of- Canada, including pre and postnatal care refugee-health-cuts laboratory, diagnostic and ambulance services. 67 List of infectious diseases, please see this http://www.cic.gc.ca/english/refugees/outside/a document in French, Note 3 rriving-healthcare/individuals/apply-who.asp https://www.medavie.bluecross.ca/cs/BlobServ 64 Limited dental and vision care, home care er?blobcol=urldata&blobtable=MungoBlobs&bl and long-term care services by allied health- obheadervalue2=abinary%3B+charset%3DUT care practitioners, including clinical F-8&blobheadername2=MDT- psychologists, occupational therapists, speech Type&blobkey=id&blobwhere=1187213211399 language therapists, physiotherapists assistive &blobheader=application%2Fpdf devices, medical supplies and equipment, 68 List of countries, including: orthopedic and prosthetic http://www.cic.gc.ca/english/refugees/reform- equipment, mobility aids, hearing aids, diabetic safe.asp supplies, incontinence supplies, and oxygen 69 L. Samson and C. Hui, “Cuts to refugee equipment. health program put children and youth at risk”, http://www.cic.gc.ca/english/refugees/outside/a Canadian Paediatric Society, 2012, rriving-healthcare/individuals/apply-who.asp http://www.cps.ca/advocacy/CPS_RefugeeHea 65 Op. cit. note 62 lth.pdf

 Page 28 CANADA healthcare or medications if these by the executive branch of the were required to prevent or treat a Canadian government […] This is disease posing a risk to public health70. particularly, but not exclusively so as it affects children who have been Finally, at the discretion of the brought to this country by their Immigration Minister, some people parents”74. could be granted special dispensation for health services71. This happens in The federal government was given four very rare and exceptional months, until 4 November 2014, to circumstances. reinstate the original programme75. On 4 November 2014, the government As a result, ending coverage for basic announced what it calls “Temporary healthcare impeded many pregnant measures for the Interim Federal women from having access to Health Program”76 which is not quite a antenatal and obstetric care; as well as full reversal of the cuts of 201277. children from having access to the These measures will be in force until diagnosis and treatment of common the end of the trial. illnesses, including infections which commonly affect children in their early It should be noted that the government years72. Moreover, chronic medical has restored access to healthcare and conditions that routinely present medications through IFHP for children, themselves in early childhood, such as pregnant women and asylum seekers asthma, may be diagnosed late or not from designated countries of origin. at all73. The government has not restored However, after the cuts in 2012, access to medications for all other Quebec decided to cover free of active refugee claimants, privately- charge all health services which were sponsored refugees in case of no longer covered by the federal resettlement78 or rejected claimants government. Thus, in Quebec, refugee until the date of expulsion, who were claimants, privately-sponsored provided with access to medications refugees or rejected claimants until the through the IFHP before the 2012 cuts. date of expulsion have access to the same healthcare and services as before the government’s cuts.

In July 2014, a legal challenge launched on the basis of a violation of 74 the Charter of Rights and Freedoms Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, was successful. The Federal Court Daniel Garcia Rodriques, Hanif Ayubi and deemed the cuts to the refugee health Justice for Children and Youth v Attorney programme “cruel and unusual” General of Canada and Minister of Citizenship treatment. Indeed, the Court ruled that and Immigration, 2014, Federal Court “the changes to the IFHP constitute http://cas-ncr-nter03.cas-satj.gc.ca/rss/T-356- 13%20Cdn%20Doctors%20v%20AGC%20Jud cruel and unusual treatment of a poor, gment%20and%20Reasons.pdf vulnerable and disadvantaged group 75 Op. cit. note 66 76 http://www.cic.gc.ca/english/department/media /notices/2014-11-04.asp 70 Ibid. 77 Op. cit. note 66 71 Op. cit. note 69 78 72 Op. cit. note 69 http://www.cic.gc.ca/english/refugees/sponsor/i 73 Op. cit. note 69 ndex.asp

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Bill C-3179 claimants regarding their access to Bill C-31 is an Act to amend the healthcare. Protecting Canada’s Immigration Undocumented migrants System Act that was introduced in the House of Commons on 16 February In Quebec, undocumented migrants 2012. Asylum seekers whose claims have no access to public healthcare. for protection are deemed eligible have Any emergency care they may receive to be heard by the Immigration and is at their own expense. Refugee Board of Canada (IRB), a quasi-judicial federal body. It often Moreover, families with some members takes up to six weeks. Following this who do not have legal status (e.g., initial interview with an immigration Canadian children whose parents lack officer, claimants for refugee protection legal status) may also fail to seek care have to proceed to a hearing before a for administrative reasons; for fear that panel of the IRB’s Refugee Protection the parents’ immigration status could Division. Unsuccessful claimants are be exposed or for fear of being sometimes detained before being reported, detained and threatened with removed from Canada; however, they expulsion from Canada. may apply to the Federal Court of In addition, the Federal Court of Canada for a judicial review. Appeal’s 2011 decision in Nell While some of the IFHP cuts have Toussaint v Attorney General of Canada and the Canadian Civil been reversed, Bill C-31 implies that 81 individuals making inland claims are Liberties Association determined that not considered to have an active an undocumented immigrant was refugee claim until their interview, properly excluded from a federal health leaving them without access to health insurance programme and held that insurance or services such as social benefits under that programme were assistance for at least six weeks. only available to a narrow class of residents and a limited number of Under the pretext of efficiency and undocumented migrants within the fairness, the bill allows for control and jurisdiction of the Canadian differentiation between groups of immigration authorities82. refugee claimants who are then subject to different treatment80. In practice, there is no overarching legal duty in Canada for doctors in Therefore, access to healthcare 83 depends on the processing of the clinics or hospitals to treat patients . application for each group. This bill had a particularly negative impact 81 Nell Toussaint v Attorney General of Canada while the government cut off access to and the Canadian Civil Liberties Association, healthcare through the IFHP. It 2011, Federal Court of Appeal, alarmed and confused refugee http://www.law.yale.edu/documents/pdf/Intellec tual_Life/Toussaint_v._Canada.pdf 82 P. Glen, “Health Care and the Illegal Immigrant”, Health Matrix: Journal of Law- 79 Statutes of Canada 2012, Chapter 17 2012, Medicine, vol. 23, 2013, http://www.parl.gc.ca/HousePublications/Public http://scholarship.law.georgetown.edu/cgi/view ation.aspx?Language=E&Mode=1&DocId=569 content.cgi?article=1788&context=facpub 7417 83 A. Sikka and al., “Access to Health Care and 80 Workers’ Compensation for Precarious http://www.parl.gc.ca/About/Parliament/Legisla Migrants in Québec. Ontario and New tiveSummaries/bills_ls.asp?ls=c31&Parl=41&S Brunswick”, McGill Journal of Law and Health, es=1 Vol 5(2), 2011, http://mjlh.mcgill.ca/pdfs/vol5-

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However, doctors’ codes of conduct states in Article 7 that “every person and provisions in provincial legislation whose life or bodily integrity is point to the existence of duties to treat endangered is entitled to receive the some people, including undocumented care required by his/her condition. migrants who may not be otherwise Every institution shall, where covered for medical services, under requested, ensure that such care is some circumstances84. provided”88. Several legislative provisions in Articles 513 and 515 of the same act Quebec indicate a doctor’s duty to deal with users’ contributions. Article treat a patient, particularly where the 513 establishes that, “The amount of person is in life-threatening the contribution may vary according to circumstances. In the Quebec Charter the circumstances or needs identified of Human Rights and Freedoms, there by regulation. The contribution shall be is a civil duty “to rescue”85. According required by an institution or by the to an Act Respecting Health Services Minister. The users themselves are and Social Services, a person entering bound to pay it […]”. Article 515 a healthcare facility “whose life or mentions that “the government may bodily integrity is endangered is prescribe a financial contribution which entitled to receive the care required by varies according to whether the user his condition”86. Quebec’s Code of or person of whom payment of the Ethics for doctors also obliges them to financial contribution may be “come to the assistance of a patient required is or is not resident in and provide the best possible care Quebec, and define, for that purpose, when [they have] reason to believe the expression ‘resident in Quebec’.” that the patient presents with a condition that could entail serious In addition, there are internal consequences if immediate medical regulations in healthcare facilities and attention is not given”87. other guidelines pertaining to billing in public hospitals which impede Moreover, the act on health services undocumented migrants from having and social services adopted in 1991 access to healthcare.

Finally, a large number of complaints 2/MJLH%20Vol%20V,%20No.%202%20- have been lodged regarding the billing %20Sikka.pdf of individuals without health coverage. 84 Ibid. The college of general practitioners 85 Charter of Human Rights and Freedoms, RSQ c C-12, s 2, provides that “[e]very person and the college of specialist physicians must come to the aid of anyone whose life is in encourage their members to charge up 89 peril, either personally or calling for aid, by to three times the usual price . giving him the necessary and immediate physical assistance, unless it involves danger Thus, even though there is a generally to himself or a third person, or he has another accepted understanding that doctors in valid reason.” Quebec are under a legal obligation to 86 An Act Respecting Health and Social Services, Updated to 1 April 2015, treat patients in case of emergency, http://www2.publicationsduquebec.gouv.qc.ca/ they do not hesitate in practice to dynamicSearch/telecharge.php?type=2&file=/S _4_2/S4_2_A.html 87 Code of Ethics of Physicians, Updated to 1 April 2015, 88 Op. cit. note 86 http://www2.publicationsduquebec.gouv.qc.ca/ 89 Our teams are working on it and are dynamicSearch/telecharge.php?type=3&file=/ collecting official documents about this M_9/M9R17_A.HTM controversy.

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CANADA charge high fees to undocumented delivery94. This leads women to migrants. Since the law does not seriously consider home delivery and specify the amount of health costs, to renounce antenatal care. healthcare facilities and practitioners may arbitrarily determine them. The constant fear of being reported to the immigration authorities and Undocumented pregnant women expelled is another significant barrier in 95 In Quebec, the cost of healthcare is accessing healthcare . Therefore, very high for anyone without a valid many pregnant women prefer to pay fees to private practitioners rather than health insurance card. A 96 gynaecological consultation can cost go to public health structures . as much as €140; on top of that is For those who can afford private added the cost of blood tests, practitioners’ fees, they most often ultrasounds and any other tests have to leave the hospital within an required to ensure the health of the 90 hour or a few hours after giving birth mother and child . because they do not have the means 97 The average bill for delivery services to pay for an extra night or day . In ranges from €5,000 to €7,000, some cases, this leads to medical complications that could have been depending on the institution, but fees 98 are often higher if there are avoided . complications and if more complex 99 91 As for pregnancy termination , medical attention is needed . undocumented women have to pay This amount includes hospital fees for 100% of the services. The price varies the mother (between €1,700 and according to the stage of pregnancy. €2,500 per day, depending on the By way of indication, women without hospital) and the baby (between €700 health coverage, including and €1,000 per day), as well as the undocumented women, have to pay: doctor’s fees (between €1,000 and  92 €425 (stage between 12 and 13 €2,000) . For women who need it, an weeks) epidural adds between €350 and €650  93 €550 (stage between 14 and 16 to the bill . These costs are a direct weeks) obstacle to healthcare services that  €700 (stage between 17 and 20 are essential to maternal health. weeks)  Furthermore, new practices have €1,200 (stage between 20 and recently been introduced in some 23 weeks) hospitals requiring pregnant women to pay all or part of these amounts before 94 C. Rousseau, “Perinatal health care for undocumented women in Montreal: When sub- standard care is almost the rule”, Journal of 90 Doctors of the World – Médecins du Monde Nursing Education and Practice, Vol. 4, No. 3, Canada, Women with precarious status and 2014, maternal health: Insecure access to health http://www.sciedu.ca/journal/index.php/jnep/art care in Montreal, 2013, icle/viewFile/3326/2325 http://www.solidarityacrossborders.org/solidarit 95 Ibid. y-city/solidarity-city-journal/women-with- 96 Op. cit. note 94 precarious-status-and-maternal-health- 97 Op. cit. note 94 insecure-access-to-health-care-in-montreal 98 Op. cit. note 94 91 Ibid. 99 92 Op. cit. note 90 http://www.educaloi.qc.ca/en/capsules/abortion 93 Op. cit. note 90 -no-legal-time-limits

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Children of undocumented migrants Indeed, there are important barriers The children of undocumented regarding the access to free migrants, even when born in Canada vaccination for children without health (thus immediately obtaining Canadian coverage, who include undocumented citizenship) face many issues migrants, but also children born to regarding access to healthcare. Thus, parents with visitor or student visas. although Canadian-born children Children are denied access to free should have the right to access the vaccination in the local community same healthcare services as any other service centres in their neighbourhood Canadian citizen, they often (Centre Local de Services experience challenges in getting Communautaires – CLSC). These coverage due to their parents’ status. centres are in charge of giving free vaccines to children after birth. If one of the parents is a Canadian According to the Doctors of the World citizen or permanent resident, the child – Médecins du Monde Canada (MdM has the right to a RAMQ card from CA) team, they ask undocumented birth. parents to pay €100 per vaccine. If one of the parents is in a status The only way to access free healthcare regularisation process (e.g. refugee for Canadian-born children is through claimant, application for permanent the application of their parents to residency), the child also has the right obtain a legal and permanent status. to a RAMQ card from birth. During the waiting period after the application is submitted, their children In these cases, even if children are will be eligible for the RAMQ until the born in Canada and qualify for application is processed. If the provincial coverage, parents often find application is refused, children are no it difficult to obtain documentation or longer eligible for the RAMQ. It should fear the consequences that seeking be noted that most parents are afraid healthcare might have on their to take their children to apply for the immigration status. RAMQ or to be vaccinated in a CLSC.

Finally, if both parents are temporary Unaccompanied minors residents or undocumented migrants, the child does not have the right to be Generally speaking, unaccompanied covered by the RAMQ even if they are minors are regarded as “people to technically considered to be a protect”, making them eligible for the Canadian citizen. IFHP. Thus, they have the same access to healthcare as asylum Even though the Canadian courts have seekers and refugees, which includes consistently recognised that most access to free vaccination. provisions of the Canadian Charter of Rights and Freedoms, including the PRAIDA is a specialist centre that equality rights guaranteed by Section supplies healthcare, medical services 15, apply to non-citizens present on and assistance to unaccompanied Canadian territory, there is no law minors. Indeed, this regional giving free access to vaccination if programme is responsible for them children are not eligible for the RAMQ. from their arrival until they become Moreover, in practice, policies and permanent residents. government procedures restrict access Unaccompanied minors seeking to healthcare for many children. asylum in Canada have, in general, a

 Page 33 CANADA lower rate of success in their asylum Cree or Naskapi community has a claims than accompanied children or CLSC. The Cree and Inuit Nations also adults. However, they also have a have hospitals in their territory. lower expulsion rate100. Finally, the Cree and Naskapi Nations, Aboriginals in Quebec as well as Inuit, continue to benefit from certain health programmes The term “Aboriginal” refers to the first funded by the federal government, peoples of North America and their including those for home care. They descendants. The Canadian also have access to most community Constitution recognises three groups health programmes funded by Health of Aboriginal peoples in Canada: First Canada (Federal Ministry of Health). Nations, Métis and Inuit. These three groups have their own history and their Communities not bound by an own languages, cultural practices and agreement beliefs. In Aboriginal communities not bound In Quebec, Aboriginal people by an agreement, social and health represent about 1% of the population. services are mainly funded by the In 2011, the Aboriginal population had federal government (Health Canada more than 93,000 individuals in the and the Department of Aboriginal province. They mainly live in 14 Inuit Affairs and Northern Canada villages and 41 First Nations Development) and generally under the communities who are united into 10 responsibility of band councils or tribal nations: Abenaki, Algonquin, councils. They ensure the delivery of Atikamekw, Cree, Huron-Wendat, primary healthcare and social services, Innu, Maliseet, Mi'gmaq, Mohawk and especially community health Naskapi. The Métis status is not programmes focusing on health recognised in Quebec. promotion and disease prevention. These services are offered by a health In Quebec, there are three groups of centre or a nursing station in the Aboriginal peoples: Cree, Inuit and community. First Nations. The healthcare structure differs from one community to another, Health Canada also funds the Non- depending on the status of each Insured Health Benefits Program that community. pays the cost of prescription drugs, eye care, dental care, certain medical Communities bound by an agreement equipment and supplies and medical The Quebec government finances transport. Finally, individuals who need health and social services in secondary or tertiary care in a Quebec communities bound by an agreement, facility are covered by the RAMQ. i.e. the Cree, Inuit and Naskapi. The People living outside the communities territories of the Inuit nation and those of the Cree Nation are two different First Nations and Inuit living outside health regions in Quebec, health Aboriginal communities receive the regions 17 and 18. Each Inuit village, same health and social services in Quebec as Quebecers. They also benefit from the Non-Insured Health 100 S. Grover, “Denying the right of trafficked Benefits Program of Health Canada. minors to be classed as convention refugees: The Canadian case example”, International Journal of Children's, Volume 14, Issue 3, 2006.

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Protection of seriously ill withdrawn before the hearing at foreign nationals the Immigration Refugee Board. The Immigration and Refugee However, there are exceptions to this Protection Regulations of 2001, last “12-month ban”. An applicant can amended on 21 February 2015, apply if: foresees the application for permanent residence within Canada on  they provide sufficient credible humanitarian and compassionate and objective evidence that grounds if the applicant: there are children under 18 years of age who would be  is a foreign national currently directly and adversely affected if living in Canada; and they are removed from Canada;  needs an exemption from one or or more requirements of the  they provide sufficient credible Immigration and Refugee and objective evidence that they Protection Act or Regulations in (or a rejected asylum seeker order to apply for permanent included in their application), if residence within Canada; and returned to their home country,  believes they would experience would be subject to a risk to life unusual and undeserved or caused by the inability of their disproportionate hardship if they country (or countries) of are not granted the exemption nationality, or former habitual they need; and residence if they do not have a  is not eligible to apply for nationality, to provide adequate permanent residence from health or medical care. within Canada in any of these classes: Treatment of infectious  spouse or common-law diseases partner, Integrated services for screening and  live-in caregiver, prevention (SIDEP) of STIs and blood-  protected person and borne infections (BBIs) are a set of Convention refugees, services offered by the CLSC health  temporary resident permit providers (nurses). These services are holder. anonymous and free. They are meant for people who face multiple In addition, an application for vulnerabilities, such as homeless humanitarian and compassionate people, sex workers, First Nation grounds cannot be introduced if in the people, etc. In particular, they provide last 12 months: immunisation against hepatitis A and B, as well as screening for hepatitis B  a refugee claim was rejected and HIV. (including claims that were abandoned) by either the Everyone has access to these Refugee Protection Division or services, even those without health the Refugee Appeal Division of coverage, regardless of their legal the Immigration Refugee Board; status. Thus, undocumented migrants  a refugee claim has been may have access to free and withdrawn unless the claim was anonymous screening. However, in practice, some receptionists ask for the

 Page 35 CANADA health insurance card because they do not know the rights of patients. Treatment for STIs and BBIs is not accessible without a health insurance card.

 Page 36 FRANCE

the Resistance: all citizens contribute FRANCE according to their means and receive healthcare services according to their National Health System needs. Article L. 1110-1 of the Public Health Code states that, “health Constitutional basis providers, health facilities […] contribute to […] guaranteeing equal The Preamble to the Constitution of 27 101 access to healthcare for each October 1946 , the Declaration of the individual as required by their health Rights of Man and of the Citizen of 26 condition”105. August 1789 as well as the Charter for the Environment of 2004102 have Healthcare is managed almost entirely formed part of the “constitutional by the state and publicly financed block”, together with the Constitution of through employee and employer 4 October 1958, since the decision of payroll contributions and earmarked the Constitutional Council in 1971. income taxes, revenue from taxes levied on tobacco and alcohol and Firstly, the Preamble to the state subsidies and transfers from Constitution guarantees in paragraph other branches of social security106. 11 “to all, notably to children, mothers and elderly workers, protection of their The health insurance system is health, material security, rest and dominated by the National Health leisure. All people who, by virtue of Insurance Fund for Salaried Workers their age, physical or mental condition, (Caisse Nationale d’Assurance or economic situation, are incapable of Maladie des Travailleurs Salariés – working shall have to the right to CNAMTS)107. It covers the majority of receive suitable means of existence the population, including beneficiaries from society”103. of universal medical coverage (Couverture d’Assurance Maladie – Moreover, the Charter for the CMU). Environment of 2004 declares that “everyone has the right to live in a Other basic funds cover specific balanced environment which shows occupational groups: for instance, the due respect for health”104. agricultural scheme (Mutualité Sociale

Organisation and funding of French healthcare system 105 Article L. 1110-1 of the Public Health Code, http://www.legifrance.gouv.fr/affichCodeArticle. Healthcare in France is characterised do?cidTexte=LEGITEXT000006072665&idArti by a social security system based on cle=LEGIARTI000006685741&dateTexte=&cat egorieLien=cid solidarity which was created after the 106 Second World War as conceived by The Commonwealth Fund, INTERNATIONAL PROFILES of Health Care Systems, Australia, Canada, Denmark, England, France, Germany, Italy, Japan, the 101 Preamble to the Constitution 1946, Netherlands, New Zealand, Norway, Sweden, http://www.conseil-constitutionnel.fr/conseil- Switzerland, and the United States, New-York, constitutionnel/root/bank_mm/anglais/cst3.pdf 2013. 102 Constitutional Law of 2 March 2005 related 107 Civitas, Health care Systems: France, to the 2004 Charter for the Environment, updated by Emily Clarke (2012) and Elliot http://www.legifrance.gouv.fr/Droit- Bidgood (January 2013), Based on the 2001 francais/Constitution/Charte-de-l- Civitas Report by David Green and Benedict environnement-de-2004 Irvine, 103 Op. cit. note 101 http://www.civitas.org.uk/nhs/download/france. 104 Op. cit. note 102 pdf

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Agricole – MSA) or the scheme for the membership is based on self-employed (Régime Social des occupation113. Statutory health Indépendants – RSI)108. insurance fund eligibility is granted either through employment (to salaried These three main schemes (CNAMTS, or self-employed working people and MSA and RSI) were federated into a their families) or as a benefit to those National Union of Health Insurance formerly employed who have lost their Funds (Union Nationale des Caisses jobs (and their families), students and d’Assurance Maladie – UNCAM) by 114 109 retired people . In addition, universal the 2004 health insurance reform . access is guaranteed for those on low This new federation has become the incomes and/or with chronic sole representative of the insured in conditions115 who also fulfil the negotiations with healthcare providers. condition of residence. The Primary Health Insurance Funds French citizens residing in France for (Caisses Primaire d’Assurance more than three months and foreign Maladie – CPAMs) are responsible for nationals with permission to reside or the reimbursement of claims and 110 who have started a regularisation benefits . They also manage process, must register with their local preventive services and general health 111 CPAM for national health insurance and social care in their area . coverage116. Having done this, an individual is issued with a “carte vitale” The former Regional Health Insurance with a photo, similar to a credit card, Funds (Caisses Régionales which indicates the individual’s d’Assurance Maladie – CRAMs) which national insurance rights in electronic now fall under their respective form117. This card is not a means of Regional Health Agencies (Agences payment, but it does facilitate a quicker Régionales de Santé – ARS), assume reimbursement and simplifies the responsibility for the CPAMs in their 112 procedure (electronic treatment form) area . for health professionals and patients. For the majority of patients, medical The rate of health insurance system goods and services are not free at the coverage (reimbursement) varies point of use. across goods and services but there Accessing France healthcare are several reasons for patients being system exempt from co-payment (“ticket modérateur”). This applies especially All residents are entitled to receive to those with long-term chronic publicly financed healthcare through illnesses (Affections de Longue Durée statutory health insurance from non- – ALD118), such as diabetes and competitive statutory health insurance HIV/AIDS, or those who are entitled to funds - statutory entities whose supplementary universal medical

108 Ibid. 113 Op. cit. note 106 109 K. Chevreul et al., “France: Health system 114 Op. cit. note 106 review”, Health Systems in Transition, Vol 12, 115 Op. cit. note 106 No 6, 2010, 116 Op. cit. note 107 http://www.euro.who.int/__data/assets/pdf_file/ 117 Op. cit. note 107 0008/135809/E94856.pdf 118 List of long-term chronic illnesses (ALD 110 Ibid. 30+1), 111 Op. cit. note 109 http://www.fondshs.fr/Media/Default/Images/R 112 Op. cit. note 109 essources-Allocations/Liste_des_ALD_30.pdf

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FRANCE coverage (CMU-C) or pregnant women France allowed all persons authorised from the first day of the sixth month of to reside in France to obtain a health their pregnancy119. coverage (not any more related to employment). However, this scheme Statutory health insurance funds cover: did not include undocumented migrants. They are therefore covered  Hospital care and treatment in by a specific scheme (see below). public or private rehabilitation or physiotherapy institutions; Basic CMU  Outpatient care provided by general practitioners (GPs), Basic CMU enables those eligible to specialists, dentists and be covered for health expenses under midwives; the same conditions as other  Diagnostic services prescribed individuals, provided they have been by doctors and carried out by resident in France for three months, laboratories and paramedical but with no condition of employment. In professionals (nurses, physio- practice, the patient pays health therapists, speech therapists, expenses (medical consultations, etc.); medication, etc.) but doesn’t have to  Prescription drugs, medical pay the full amount. For a GP appliances and prostheses that consultation, the health insurance have been approved for reimburses the mandatory part, known reimbursement; and as the “social security part” (€15.10)  Prescribed healthcare-related and the patient has to pay the transport120. supplementary part (€6.90) and the flat-rate contribution (€1). Statutory health insurance also To be entitled to free basic CMU, an partially covers long-term and mental individual must be on a low income healthcare and provides minimal (below €9,610 per year). If an coverage of outpatient vision and 121 individual earns more than this annual dental care . threshold, the basic CMU is not free. The individual must pay a contribution CMU scheme based on 8% of their income. In January 2000 (CMU Law, 27 July Moreover, the individual must be a 1999122) basic universal medical French citizen, have a residence coverage (CMU) and supplementary permit or have started the CMU (CMU-C) were created in order to regularisation process, and must have enable people who are not covered by been living in France (mainland the health insurance scheme to have 123 France or the French overseas access to healthcare. This major departments (Départements d’Outre- change in health coverage system in Mer – DOM), with the exception of

119 http://www.ameli.fr/assures/soins-et- remboursements/ce-qui-est-a-votre-charge/le- 123 The country of France comprises ticket-moderateur.php metropolitan France, including the islands 120 Op. cit. note 106 around its coast and , and a number of 121 Op. cit. note 106 overseas departments and territories outside 122 Basic Universal Coverage (CMU) Law of 27 the continent of Europe. In this report the term July 1999, "mainland France" is used to describe all of http://www.legifrance.gouv.fr/affichTexte.do?ci France excluding the overseas departments dTexte=JORFTEXT000000198392 and territories.

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FRANCE

Mayotte where the scheme is different It should be noted that reforms to the (see below)) continuously for more ACS scheme are to be undertaken than three months. Asylum seekers from July 2015. Users of this scheme who have fully started their claim will not need to pay for their medical process can also request this expenses upfront (full third-party coverage. payer).

CMU-C The free medical centre The CMU-C is a free supplementary (Permanence d’Accès aux Soins – health insurance. It enables those PASS) eligible to have free access to The law against social exclusion of 29 healthcare at the point of use, July 1998127 created the hospital PASS including healthcare services in system on the model of MdM clinics. hospital. This system aims to enable anyone to access outpatient hospital care, even To be entitled to CMU-C, an individual without health coverage and even must be on a low income: below before administrative procedures have €720.42 per month (€8,644.52 per been completed. This system year) in mainland France or below dedicates a specific budget line for €801.75 per month (€9,621 per year) these consultations, which the in the overseas departments (except hospitals can use as they choose. Mayotte)124. The same conditions of residency must be met as for CMU. Some hospitals offer a multidisciplinary set-up that places social services on Supplementary health insurance the frontline: patients who wish to assistance scheme (Aide benefit from the PASS system must Complémentaire Santé - ACS) first be seen by the dedicated social ACS provides financial assistance to service, and receive a “PASS token” to access supplementary health cover their consultation; some insurance. People who have access to specialties will be included in the ACS receive financial support for system, others won’t. Other hospitals supplementary health insurance of have a “dedicated PASS”: basically, a between €100 and €550 per year GP service which offers general depending on age125. consultations for free to those who cannot afford the consultations To be entitled to ACS, an individual (because they have no health must have an income which does not coverage, have financial difficulties, exceed the threshold for access to etc.). CMU-C by more than 35% 126 (€720.42 (in mainland France) or €801.75 Medical consultations are (DOM, except Mayotte)). The ACS is accompanied by a social consultation, valid for one year. where social workers help gather all the necessary documents and provide information on how to get health coverage. Some PASS only agree to 124 see patients who have a potential right http://vosdroits.servicepublic.fr/particuliers/F10 73.xhtml 125 http://vosdroits.servicepublic.fr/particuliers/F13 127 375.xhtml#N10237 http://reaannecy.free.fr/Documents/congres/Co 126 Ibid. ngre_IDE/PASS_texte.pdf

 Page 40 FRANCE to health coverage, others allow measure is expected at the end of unconditional access to their services 2015. and the hospital. In May 2014 (figures last consulted on On 18 June 2013, a circular on the 22/02/2015), 920,000 people were organisation and functioning of using ACS, compared with 826,257 PASS128 created a regional before the widening of the eligibility coordination structure with a PASS criteria (an additional 93,743 people). framework which details every PASS in France and evaluate them. MdM FR In June 2014, 5,095,097 people had participated very actively in designing CMU-C compared with 4,649,533 in what a PASS should be. June 2013, before the widening of the eligibility criteria (an additional 445,564 In practice, the application of the PASS people). system is very heterogeneous and imperfect: as the system is different in This means that so far, 539,307 every hospital, it is difficult for patients additional people have obtained to understand and there is no coverage thanks to this positive guarantee that they will find the service measure (not including those they need at the hospital in their area covered by State Medical Aid (Aide of residence. The PASS systems are Médicale Etat – AME)). not all the same and not all of them offer actual access to healthcare for New healthcare Bill people in vulnerable situations. The A new healthcare bill is currently system is often insufficient to meet the debated in the Parliament. According needs. to MdM FR, there are many progresses to consolidate by vote: It should be noted that this scheme enables people who cannot afford  the new definition of harm consultations to gain access to reduction policy and the outpatient care. For any access to implementation of safe inpatient services, individuals must be supervised injection centers in an emergency situation or must wait unlock new opportunities until they have health coverage. regarding drug users’ care and treatment; Positive reform  the progressive spread of the Following the President’s policy third party payment system in commitments, from 1 July 2013, the order to get free access to care financial resources eligibility criteria for at point of use to reduce the CMU-C and supplementary health amount of patients giving up insurance assistance (ACS) were seeking care; widened by 8.3% (€972.5129 in May  the acknowledgement of the 2015). This revaluation should enable need to provide interpreters and more than 750,000 additional health mediators in health individuals to have full health structures in order to facilitate coverage. The full extent of this access to care;  associations can call upon the High Authority for Health (Haute 128 Circular of 18 June 2013, Autorité de Santé – HAS); http://www.sante.gouv.fr/fichiers/bo/2013/13-  the Economic Committee for 07/ste_20130007_0000_0078.pdf Healthcare products (Comité 129 http://www.cmu.fr/acs.php

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Economique des produits de before their application for social Santé – CEPS) can make a security. If they have no official framework agreement with documentation, they can make a registered associations; sworn statement regarding their financial resources. They are exempt However, there are also many from the condition of residence (three loopholes: months) but they must prove that they are in the country legally130.  Simplification of access to rights and care should be a priority of They can also apply for CMU-C, which this bill. All NGOs are waiting for will be granted, depending on their the integration of the AME into financial resources, as mentioned the CMU. Another expected above. As nationals entitled to CMU-C, measure is a multi-year CMU-C all their medical expenses will be instead of a yearly renewal. supported at the 100% rate of social  No change to reduce refusal of security. healthcare: still monitored by the Medical order council which It should be noted that to be entitled to is both judge and party. The CMU and CMU-C they need to have notion of refusal to healthcare an address, after which they can should be clearly defined, the submit their asylum application to the burden of proof should be prefecture; this procedure then reversed and an independent eventually entitles them to health observatory should examine coverage. Providing an address is refusals of healthcare through a often complicated, as asylum seekers’ situational test; accommodation is usually precarious  New healthcare bill is still and so they must use an administrative missing the opportunity to address to receive their mail. This match up law in Mayotte with administrative address is provided by mainland law regarding medical entitled non-profit organisations, which protection, leaving many people are overwhelmed with requests. For with no access to care and instance, in Paris, it takes around five social help. months to get an address. Thus, during this period, they are considered Access to healthcare for as undocumented migrants. They may only access AME under certain migrants conditions and must access healthcare through PASS while they have no Asylum seekers and refugees medical coverage. According to Article R. 380-1 of the Social Security Code, asylum seekers However, some asylum seekers are and refugees have the same access to excluded from the general legal healthcare as authorised residents. In system by local prefectures. theory, they obtain social security  There are those who are subject health coverage upon arrival on 131 to the Dublin III regulation . French territory.

They have access to the CMU scheme 130 http://www.cmu.fr/resider-en-france-stable- (basic CMU and CMU-C). To be regulier.php entitled to basic CMU, they must have 131 This Regulation establishes the principle earned less than €9,534 the year that only one Member State is responsible for examining an asylum application. It temporarily

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This Regulation establishes the Pregnant asylum seekers and principle that only one Member refugees State is responsible for In theory, pregnant women have the examining an asylum same access to antenatal, delivery and application. The French postnatal care as nationals and authorities are temporarily authorised residents. This includes forbidden from considering the termination of pregnancy. In practice, asylum application while they they may face the same barriers as wait for a decision by the those described above. Member State responsible for considering the individual’s Children of asylum seekers and asylum application. These refugees people, according to circular n° In theory, children of asylum seekers DSS/2A/2011/351 of 8 and refugees have the same access to September 2011 are therefore healthcare as the children of nationals not entitled to social security but or authorised residents. to AME (for undocumented migrants).  They can access mother and  There are those from safe child health centres (Protection countries who are subject to the maternelle et infantile – PMI) “priority” procedure, which without any status requirements denies them a temporary and for free. The PMI centres residence permit, while granting offer preventive care, follow-up them the “right to stay in and vaccination for babies and France” until a decision is made children up to six years old. In by the authorities about their some areas, however, these asylum application (15 days for centres are overcrowded and the Office for the Protection of face difficulties with responding Refugees and Stateless to the needs. Persons (OFPRA) and four days  Even before starting the asylum for people in an administrative process, minors should in theory detention centre). These people have access to AME health are also not entitled to health coverage as soon as they arrive coverage under the CMU in France. In practice, their scheme like other asylum parents lack information and seekers. often don’t request AME before they have been in the country Thus, they can only access AME under for at least three months, and certain conditions (three months’ actually obtaining AME takes residence, income conditions, proof of several months. address) and access healthcare through PASS while they have no Undocumented migrants medical coverage. According to Article L251-1 of the Social Action and Family Code, an forbiddens the examining of the asylum undocumented individual who has application by French autorities while waiting been resident for more than three for determining the Member State responsible months in France and whose for examining an asylum application. http://europa.eu/legislation_summaries/justice_ freedom_security/free_movement_of_persons _asylum_immigration/l33153_en.htm

 Page 43 FRANCE resources are less than €720 per entitled to any health coverage and month is entitled to AME132. must pay the full costs for themselves and their family, which is obviously This gives access to all healthcare impossible for most of them. providers without paying at the point of service. Costs are fully covered Another condition undocumented (except for prosthesis (dental, optical, migrants must fulfil to benefit from etc.), medically assisted reproduction AME is to prove their identity. Some and medicines with limited therapeutic migrants do not possess an identity value (according to the therapeutic document134 and can therefore not benefit evaluation system, Service submit a request. Médical Rendu - SMR133) which are reimbursed at 15%). However, AME To give yet another example of the coverage is regularly revised by law, administrative barriers, if a migrant as the principle of covering the health wants to prove their identity with a birth costs of undocumented migrants is certificate, said document will have to be translated by an official publicly questioned by many political 135 leaders. translator , which often costs a lot of money and is not easily available. The AME is valid for one year. But the delay in obtaining AME can be several The residence condition, added to the months after the request is submitted, proof of identity, can create a real reducing de facto the duration of AME barrier to access to healthcare for validity, which begins on the day of undocumented migrants. The situation submission. If the migrant is still is that undocumented migrants who undocumented after one year, they are unable to prove that they have can request a renewal of AME. In been resident in France for more than theory, they should submit the request three months are only entitled to for renewal two months before the hospital services for care that is AME expires. In practice, the renewal deemed urgent (pregnancy, pregnancy takes much more than two months and termination, etc.). Moreover, the there is no health coverage during the documents which are accepted in gap in between. fulfilment of the residence condition are not the same for all the social The €30 AME admission fee for security agencies in France. In each undocumented migrants, introduced by department, the local CPAM has its the previous government, was own way of applying the regulation and repealed by the new socialist one in can decide whether or not to accept 2012 as one of the first measures. certain documents. For example, certificates delivered by non-profit As undocumented migrants are not organisations like MdM are recognised allowed to work, they have to declare as proof of residence by some CPAMs their resources (no need of formal and not by others. This creates difficult proof) and expenses. When an undocumented person has resources above the threshold, they are not 134 http://www.ameli.fr/assures/droits-et- 132 http://vosdroits.service- demarches/par-situation-personnelle/vous- public.fr/particuliers/F3079.xhtml#N10118 avez-des-difficultes/l-8217-aide-medicale-de-l- 133 The SMR is a criteria used in public health 8217-etat/les-conditions-pour-beneficier-de-l- to classify drugs or medical devices according ame.php to their therapeuthic or diagnostic utility. 135 Ibid.

 Page 44 FRANCE and unequal access to health Undocumented pregnant women coverage. Pregnant women may have access to An address is also necessary in order AME. Under this scheme, they may to apply for AME. However, most access antenatal, delivery and undocumented migrants cannot prove postnatal care. In addition, they can their address and must then request access termination of pregnancy. either support from a relative by using However, because of the above- their address (although the conditions mentioned administrative barriers, it is for using a relative’s address are not very difficult for them to access the the same in all departments) or an AME scheme. administrative address. This can be This is why the above-mentioned 2005 provided either by the Communal circular ensures that undocumented Centre for Social Support (Centre pregnant women who do not benefit Communal d’Action Sociale – CCAS) from AME have access to antenatal, of the city where the individual lives (if delivery and postnatal care and they fulfil the conditions of the CCAS, termination of pregnancy, because which are often extremely complicated) these health services are always or by a entitled association. In many considered to be essential. areas (especially Paris and its suburbs), organisations face difficulties Children of undocumented migrants in responding to the level of need, as In the law, only adults’ undocumented the CCASs don’t always fulfil their role. migrants are concerned by the In order to overcome these gaps, the authorisation to stay. Thus, children of circular DHOS/DSS/DGAS adopted in undocumented migrants in France do 2005 (Article L254-1 of the Social not need a permit to reside, they are Action and Family Code136) created the not considered as undocumented Fund for Vital and Urgent Care (Fonds migrants. In principle, children of pour les soins urgents et vitaux – undocumented migrants are entitled to FSUV). This is now the urgent care the AME scheme upon arrival in scheme, valid only in hospitals. France (without the three-month residence condition), even if their The fund aims to finance the delivery parents are not eligible. The right is of essential care to individuals who do granted for one year137. not benefit from AME i.e. those who do not fulfil the three months residence In practice, several CPAMs wait for the condition or cannot prove their identity. entitlement to AME of their parents With the urgent care scheme, (after three months of residence) to healthcare is always considered as affiliate children as assignees, essential care for pregnant women and whereas children should be affiliated children. on their own behalf. Then they are only entitled to the PASS system and access to healthcare differs from one PASS to another.

136 Article 254-1 of the Social Action and Family Code, http://legifrance.gouv.fr/affichCodeArticle.do?ci dTexte=LEGITEXT000006074069&idArticle=L 137 Circular of 8 September 2011, EGIARTI000006797164&dateTexte=&categori http://www.sante.gouv.fr/fichiers/bo/2011/11- eLien=cid 10/ste_20110010_0100_0055.pdf

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Children who do not benefit from AME also ask EU citizens to request CMU can go to hospital and have free first before they can apply for AME, access to healthcare, because care for even if they will clearly not obtain it, children is considered as emergency because they don’t fulfil the conditions. care. The process for an EU citizen to obtain AME is in general quite complicated, Moreover, children can receive as the practice of each CPAM varies vaccinations against all the principal 138 and makes it difficult for individuals to diseases free of charge . In understand the rules which apply. accordance with the general health system, all children have access to However, since the circular immunisations at PMI centres139. DSS/2A/DGAS/DHOS, adopted on 7 January 2008144, modifying the above- EU citizens mentioned circular of 2005, destitute Destitute EU citizens are considered EU citizens benefit from the FSUV and as undocumented migrants (no health have access to emergency care. This coverage, insufficient financial circular specifies that while EU citizens resources)140 and they can access have the right to move and reside AME under the same conditions as freely within the territory of a member any other undocumented migrant141 state, they do not have full freedom to (DSS/DACI/2011/225 9 June 2011142). settle and reside in France. Therefore, they can be considered as They have to prove three months of undocumented migrants regarding residence in France. Moreover, provisions governing entry and stay on CPAMs must find evidence that they French territory. have no health coverage in their country of origin. In practice, CPAMs Unaccompanied minors ask EU citizens to prove that they do Unaccompanied minors in France not have health coverage in their should have access to healthcare country of origin, which is an important 143 through the health insurance system in administrative barrier . Some CPAMs the same way as the children of national or authorised residents do. 138 http://www.ameli.fr/assures/prevention- The care of unaccompanied minors sante/la-vaccination.php 139 Comité Médical pour les Exilés (COMEDE), falls under Child Protection which is Migrants/étrangers en situation précaire, 2008, the responsibility of the departmental http://www.comede.org/IMG/pdf/guide- council through child welfare services comede08.pdf and (Aide Sociale à l’Enfance – ASE). http://www.immigration.interieur.gouv.fr/Asile/L Children taken into care by social -accueil-des-demandeurs-d-asile/Les-droits- sociaux-des-demandeurs-d-asile services can benefit from 140 These are conditions to be authorized to accommodation, socio-educational reside in France for inactive individuals. measures, counselling, access to 141 Op. cit. note 134 142 healthcare and education until they Circular of 9 June 2011, reach their majority. In order to http://circulaire.legifrance.gouv.fr/pdf/2011/07/c ir_33406.pdf determine their eligibility to such 143 Doctors of the World International Network, measures, these services must assess Access to healthcare for vulnerable populations – Update of legislation in 10 countries, 2013, http://www.medecinsdumonde.org/content/dow 144 Circular of 7 January 2008, nload/14823/174607/file/legal%20update%20f http://www.sante.gouv.fr/fichiers/bo/2008/08- ull%20v06042013.pdf 02/a0020048.htm

 Page 46 FRANCE the minor’s situation through an  They would not be able to evaluation. This evaluation aims to benefit from appropriate care in determine whether or not young their home country. people seeking protection are under the age of majority and Despite strong and intense opposition unaccompanied. from organisations and some members of parliament, a reform related to However, unaccompanied minors are immigration, integration and nationality too often faced with distrust and was promulgated on 16 June 2011 questioning of their claim. Even when (“Loi Besson”)145. This reform modifies they are presented with documentary the text guaranteeing the right to stay evidence of their age, the authorities for ill foreign nationals. often rely on medical age assessment techniques, such as X-rays of bones Now, the criterion for an ill foreign and teeth and pubertal development national being permitted to remain is examinations. the absence in their country of return of appropriate treatment, except in MdM FR strongly criticises these exceptional humanitarian practices, especially because they are circumstances. Thus, the verification of imprecise, unethical and unreliable. the existence of appropriate treatment MdM is calling, as the National in the country of return would be Consultative Commission on Human sufficient to decide that the individual Rights did in an advice of 26 June can return to their home country to be 2014, for the prohibition of medical age treated. assessment and for the application of a presumption of minority in the case A seriously ill foreign national can of those who present themselves as apply for a temporary, renewable, one- minors. year residence permit for “private and family life”, if they have been in France MdM further advocates a process of for more than one year or a provisional age assessment based on a multi- residence permit for care of six months disciplinary approach, which focuses maximum if they have only been in not on chronological age exclusively, France for a short time146. but rather on the needs of children and young people. The final decision belongs to the prefect who has to take into account Protection of seriously ill the medical advice of a doctor from the foreign nationals Regional Health Agency (Médecin de From 1998, in accordance with the Code on Entry and Residence of Foreign Nationals and Right of Asylum

(CESEDA), foreign nationals ordinarily 145 residing in France could obtain a Law of 16 June 2011, http://www.legifrance.gouv.fr/affichTexte.do?ci residence permit for medical reasons dTexte=JORFTEXT000024191380&categorieL and protection from expulsion if: ien=id 146 http://www.interieur.gouv.fr/A-votre-  Their state of health required service/Mes-demarches/Etranger- medical assistance i.e. if they Europe/Etrangers-en-France/Titres- could not access healthcare, it documents-de-sejour-et-de-circulation-des- could produce consequences of etrangers-non-europeens/Questions- Reponses/Quelle-procedure-s-applique-au- exceptional gravity. sejour-des-etrangers-malades

 Page 47 FRANCE l’ARS – MARS)147. However, the in 2013, 6,006 new applications were Ministry of the Interior often becomes accepted and the total amount of involved in the medical advice people living with a permit to stay due scheme, despite the fact that to medical reasons is around 30,000, competence in this area belongs showing a great stability since 1998. exclusively to the Ministry of Health 148. According to 1,398 patients followed Thus, management of migration by some NGOs, the rate of positive interferes with health policies. decisions was 85%150. This involvement occurs at different In order to avoid a restrictive and levels of the procedure: breach of arbitrary interpretation of this medical confidentiality at the ambiguous concept of “absence of prefecture, a medical second opinion appropriate treatment”, the Ministry of conducted by the prefect disregarding Health provided clarification in an the opinion of the MARS; some instruction of 10 November 2011151. prefects consider that they are not After reiterating the medical ethical bound by the opinion of the MARS149. obligations for the application procedure, such as continuity of care The prefecture must then consider and the observance of professional administrative conditions (ordinary secrecy, the instruction specifies the residence i.e. over one year, threat to meaning of “absence of appropriate public order) to determine the type of treatment”. protection to be granted (temporary residence permit (one year) or “Treatment” is defined as all means provisional residence permit (six implemented to treat (drugs, months)). However, it does not healthcare, follow-up tests, full intervene in the assessment of medical assessment tests); the absence or conditions (Articles L.313-11 and presence of “appropriate treatment” is R.313-22 du CESEDA). assessed according to the individual’s health (stage of the disease, Until 2012, medical advice was complications) and care services in the respected and followed by the prefect. country (health infrastructure, medical Since 2012, prefects have been demography, etc.)152. increasingly rejecting applications, despite favourable medical advice from However, according to the Medical the MARS. The prefect undertakes a Committee for Exiles (Comité Médical new investigation, based on pour les exilés – COMEDE)153, in inadequate medical evidence given by addition to applications begin rejected physicians who are not listed in the by the prefect, in spite of favourable regulation to assess access to healthcare in countries of origin. Thus, 150 Comité pour la Santé des Exilés (COMEDE), Rapport COMEDE 2014, 147 Observatoire du Droit à la Santé des http://www.comede.org/IMG/pdf/RapportCome Etrangers (ODSE), Les personnes étrangères de2014.pdf malades et leurs proches 151 Instruction of 10 November 2011, ont le droit de vivre dignement en France, http://www.sante.gouv.fr/fichiers/bo/2011/11- 2015, 12/ste_20110012_0100_0085.pdf http://www.odse.eu.org/IMG/pdf/Recommandat 152 AIDES, Observatoire des étrangers ions_ODSE_projet_de_loi_immigration_22_jan malades - Droit au séjour pour soins, 2012, vier_2015.pdf http://www.aides.org/sites/default/files/doc/120 148 Ibid. 418_Rapport_EMA.pdf 149 Op. cit. note 147 153 Op. cit. note 150

 Page 48 FRANCE medical advice from ARS doctors, These facilities are open to all applications are also still rejected individuals, minors and adults. The because some MARS do not respect absence of health coverage or the instruction of 10 November 2011. residence permit is not an obstacle. It should also be noted that MdM FR Article 47 of the Social Security strongly criticised the “Country fact Financing Act for 2015154 aims to files” for 30 countries produced by the merge these two types of facility into Inter-ministerial Committee for the one, called information centres for free Management of Immigration in 2007. testing and diagnosis of sexually This committee recommended not transmitted infections (Centres gratuits taking into account the effective d'information, de dépistage et de accessibility of treatment in these diagnostic – CGIDD), with a single countries. legal status and funded by health insurance. Prevention and treatment of If a person is diagnosed with an infectious diseases infectious disease, access to treatment depends on the disease and their Sexually Transmitted Infections situation relating to health coverage: Currently, there are two types of facility holding information on sexually  HIV: this infection is considered transmitted infections and their an emergency even if the prevention and testing. person has no health coverage. The patient will be treated in  Free and anonymous testing hospital and the costs covered centres (Centres de dépistage by the PASS system or by the anonyme et gratuit – CDAG) for FSUV. HIV and hepatitis, created in  Hepatitis B and C: if a person is 1988, authorised by the ARS diagnosed but the disease is not and funded by health insurance; active (hepatitis can remain  Information centres for testing “silent” for several years before and diagnosis of sexually starting to affect the patient’s transmitted infections (Centres health), there is usually no d’information, de dépistage et access to treatment if there is de diagnostic des infections no health coverage. Access to sexuellement transmissibles – treatment will then depend on CIDDIST) where testing is access to AME or CMU, carried out for specific sexually depending on the person’s transmitted infections. Since the status. The cost of treatment recentralisation introduced by being very high, if there is a the 2004 Law related to local major obstacle to health freedoms and responsibilities, coverage (no identity papers, no they have been managed either address, no information on by the general councils by rights to health, etc), there will agreement with the State or be no possibility for access to through structures authorised by healthcare. the ARS and funded by the

State. 154 Law of 22 December 2014, http://www.legifrance.gouv.fr/affichTexte.do?ci dTexte=JORFTEXT000029953502

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Tuberculosis minors supported by the child welfare services since 2013). Dedicated facilities for the prevention, testing and treatment of tuberculosis Regarding access to healthcare, PASS (TB) also exist in France: Centres for do not provide medical consultations Fighting Tuberculosis (Centres de and the circular creating the FSUV is Lutte Anti-Tuberculeuse – CLAT). not applicable in Mayotte. If a person is diagnosed with TB, even A special scheme is provided for without health coverage, their exemption from payment in case of treatment will be covered by the PASS emergency care, but it does not always or the urgent care scheme and fully work and definition of emergency care covered, including hospitalisation. is more restrictive than in mainland France. Thus, undocumented The situation in Mayotte migrants, about one third of the population, must pay a fee (€20 for a Discrimination by the healthcare medical consultation with a GP and up scheme to €658 per day for hospitalisation in 156 Until 2005, the entire population had gynaecology ). This is much too free access to healthcare in public expensive in relation to their financial resources (one in five inhabitants healthcare facilities (clinics and 157 hospitals). Then a specific social earns less than €100 per month ). security system was implemented, However, the order adopted on 31 which was only open to French citizens May 2012 provides that expenses for and foreign nationals with permission minors and unborn babies are fully to reside, excluding from health supported if their parents’ resources protection about a quarter of the are less than a certain amount158. This population. This is the case for foreign 155 change was a major legal advance nationals with permission to reside , which enshrined the principle of free but also part of the population of access to healthcare in the public Mayotte ( born in system for minors and pregnant Mayotte) who are unable to provide women in precarious situations. The proof of their marital status or present scheme does not include private GPs’ other documents illegitimately required consultations, emergency (including proof of residence and bank transportation, nursing home care, account details). In Mayotte, CMU, medical equipment are not free of CMU-C and AME do not exist. charge. Children can only be affiliated as dependents of a French citizen residing in Mayotte or of a foreign national with permission to reside in Mayotte. Children of undocumented 156 Order of 21 July 2014, migrants or unaccompanied minors do http://www.gisti.org/IMG/pdf/arrete_ars- not have access to any form of health mayotte_no182_2014-07-21.pdf 157 The average monthly income of the French- protection (except for unaccompanied born Mayotte (Mayotte) is only 290 euros monthly (190 euros for foreign nationals), 5 times less than French do not originate in 155 Order of 20 December 1996, Mayotte. http://www.legifrance.gouv.fr/affichTexte.do?ci http://www.insee.fr/fr/insee_regions/mayotte/th dTexte=LEGITEXT000005622330&dateTexte= emes/infos/insee_infos_28.pdf 20080126 158 This amount is not set by any law.

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It should be noted that this order has until now not been applied in Mayotte.

Exceptional Law Mayotte became the outermost region of the European Union on 1 January 2014 after becoming a French department in 2011. Its legislation must comply with EU and national standards. Thus, the CESEDA now applies to Mayotte. However, the transposition of these laws in Mayotte is subject to derogations that continue to deprive foreign nationals of the rights they would be entitled to in mainland France. For instance, a foreign national in mainland France who is ordered to leave French territory has at least 48 hours to challenge the order and obtain an action of annulment from the Administrative Court. Then the execution of the expulsion is suspended until the decision by the judge. In Mayotte, a foreign national can be expelled in a few hours.

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funds162. There are two insurance GERMANY systems: public statutory health insurance (Gesetzliche National Health System Krankenversicherung – GKV) and private health insurance (Private Organisation and funding German Krankenversicherung – PKV). healthcare system For both systems, insurance payments German laws regarding access to are shared between employees and healthcare are made at the national employers163. Approximately 85% of all level. However, as a federal country, citizens belong to the public statutory responsibilities for the healthcare health insurance scheme, whereas system in Germany are shared only 10% have private health between the Länder (federal states), insurance. The remaining 5% are the federal government and civil covered by special regimes (e.g. for society organisations159 (i.e. important soldiers). competencies are legally delegated to membership‐based, self‐regulated As of 2009, it is compulsory for all organisations of payers and German citizens and long-term providers)160, thus combining vertical residents to have health insurance. For implementation of policies with strong those earning less than €54,900 per horizontal decision-making161. year, insurance is provided by the public statutory health insurance is funded by a scheme (GKV). Anyone earning more statutory contribution system that than €54,900 per year has the option ensures mostly free healthcare for to purchase a private health insurance citizens and authorised residents at the plan. point of use via health insurance The GKV is operated by approximately 150 competing sickness funds. This means that citizens and long-term residents choose to which sickness 159 For instance, there are “Kassenärztliche fund they want to belong. Vereinigung” (represents the interests of approximately 24.000 registered doctors) or Since 2009, a uniform contribution rate “Bundesärztekammer” (umbrella organization has been set by the government (and which represents political interests of almost has been set in federal law since half a million doctors) or “Deutsche 2011)164. As of 2011, employees or Patientenvereinigung” (organization for pensioners with health coverage patients). 160 R. Busse and J. Wasem, “The German contribute 8.2% of their gross incomes, Health Care System – while the employer or pension fund 165 Organization, Financing, Reforms, adds another 7.3% . Within the GKV, Challenges…”, European Observatory on this contribution also covers Health Systems and Policies, Brussels, 2013. https://www.mig.tuberlin.de/fileadmin/a383316 00/2013.lectures/Brussels_2013.02.13.rb_Ger manyHealthCareSystem-FINAL.pdf 161 Civitas, Health care Systems: Germany, updated by Emily Clarke (2012) and Elliot 162 Bidgood (January 2013), Based on the 2001 http://www.bundesaerztekammer.de/page.asp Civitas Report by David Green and Benedict ?his=4.3571 Irvine, 163 Ibid. http://www.civitas.org.uk/nhs/download/germa 164 Op. cit. note 106 ny.pdf 165 Op. cit. note 106

 Page 52 GERMANY dependents (non-earning spouses and many people without health insurance children)166. previously applied for welfare benefits and are still in debt with the insurance For destitute nationals, it depends on for this gap period. This often leads to the individual’s situation. Those with a situation where individuals still do not health coverage must pay the have health coverage due to the debt, compulsory insurance even though their current monthly fees (Pflichtversicherung). This costs a are being paid by the social welfare minimum of €135 per month, office. depending on the individual’s income. If they receive welfare benefit, then the Accessing Germany healthcare social welfare office (Sozialamt) system normally pays. However, if the person Health insurance is provided by has had a “gap” in their insurance competing, not-for-profit, non- payments and has to repay their debts governmental health insurance funds retrospectively, the social welfare (called “sickness funds” office does not cover this. This is why (Krankenkassen); there were 134 as of in many cases the debt keeps the January 2013167) through the statutory person from having full coverage (in health insurance scheme or by such cases the insurance only covers voluntary substitutive private health emergency bills). insurance (PKV)168. The GKV does not cover all the costs Regarding payments for healthcare related to medical services. In most (individual co-payments), until the end cases, small co-payments must be of 2012 the patient had to pay €10 per made, that is patients must pay on top quarter if they went to the doctor. As of of their payroll contributions. For 1 January 2013, this provision no instance, there are co-payments for longer applies. It was eliminated by inpatient services (€10 per day), for Section 1 G. v. 20.12.2012 BGBl. I S. certain treatments such as 2789169, and patients no longer have to physiotherapy or specific dental care pay anything for medical consultations. and for certain medicines patients also For medication, on the other hand, have to pay €5. However, measures patients will continue to be responsible have also been put in place to prevent for a co-payment of 10% of the cost of extreme financial burdens e.g. the medication. This co-payment will recipients of unemployment benefit continue to be at least €5 and at most and those on low incomes, individuals €10 per prescription (Section 61 SGB injured at work and pregnant women. V). For them, there is an upper threshold for the financial burden. Regarding co- Only children under 18 years old are payments, only children under 18 completely exempt from co-payment. years old are completely exempt.

The problem is that there are gaps in the system, such as the complexity of 167 There are many differences between them: filling out forms and complying with all some illness funds offer additional services the rules of the welfare benefits such as home-based care programs for isolated patients. Others offer specific care for system. Another issue is that, even patients with chronic diseases. though the monthly rates may be paid, 168 Op. cit. note 106 169 http://www.buzer.de/s1.htm?g=SGB%2BV%2B 166 Op. cit. note 106 31.12.2012&a=28

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Prior to 2004, people on welfare entitled the Statutory Health Insurance benefits and on low incomes were also Competition Strengthening Act172. The exempt. This provision was eliminated law aimed to promote competition in in 2004 and since then, the annual health insurance and healthcare expenditure on medication co- delivery, to increase efficiency and to payments for any German citizen and improve quality through more authorised resident could not exceed incentives for better coordination of 2% of their gross annual household care173. The law stipulates that any income. This limit was established to permanent resident or citizen must be prevent unreasonable costs for those covered by the public health insurance. on low incomes. The 2% calculation is It should be noted that some measures based on the head of household’s of the 2007 law were postponed to income. In addition, people with 2009. The 2009 law stipulates that any chronic illnesses do not have to pay permanent resident/citizen must be more than 1% of their gross annual covered by private health insurance if household income. they do not want to become affiliated to the public health insurance and if In case of emergency, a person with they are on a high income. health coverage (public/private) does not have to pay in advance. Since these reforms, individuals who were previously excluded from the With the 2009 reform, health insurance public health insurance system became mandatory for all citizens and because they did not pay their permanent residents in Germany contributions have had to be (previously, certain groups could reintegrated. choose not to have insurance, although few did so)170. However, and this is the negative point of these reforms, individuals who have Statutory health insurance (GKV) not been covered since 2007 (public covers: insurer) or 2009 (private insurer), have had to settle their debts, namely  Preventive services, inpatient and outpatient hospital care; retroactively pay all their contributions.  Physician services; For example, a permanent resident  Mental healthcare; who became affiliated to the public  Dental care; insurer in 2010 has had to repay their  Optometry; debt (absence of monthly  Physiotherapy; contributions) from 2007 to 2010.  Prescription drugs; Regarding the public insurer, the debt  Medical aids; must be paid from April 2007, adding a  Rehabilitation; 5% rate of interest. The same rule  Hospice and palliative care; applies for any private insurer, but only  Sick leave compensation171.

Recent reforms On 25 October 2006, the German 172 M. Lisac, “Health care reform in Germany: government presented a Not the big bang”, Health Policy Monitor, Germany, 2006, comprehensive healthcare reform bill, http://www.hpm.org/de/Surveys/Bertelsmann_ Stiftung_- _D/08/Health_care_reform_in_Germany__Not 170 Op. cit. note 106 _the_big_bang.html 171 Op. cit. note 106 173 Ibid.

 Page 54 GERMANY debts incurred since 2009 have to be had subscribed to minimum reimbursed. health coverage since 2009. The debt is equivalent to the This law created a significant monthly contributions for dysfunction because many individuals minimum health coverage, could not repay their debt. Then a new which is around €100-125 per law came into effect on 11 August month. 2013, which was adopted to reduce  174 If an individual was not yet this debt . insured but decided to subscribe before 31 December Regarding the public insurer, there are 2013, the debt from 2009 to the two cases: date of their subscription is  If an individual subscribed from cancelled. April 2007 to 31 December  If an individual decided to 2013 and did not pay their subscribe to a private insurer contributions during this period, after 31 December 2013, they but started paying from 31 have to pay 15 times the December 2013, the incurred amount of their monthly debt is cancelled. contributions, so between  If an individual subscribed from €1,500 and €2,000. April 2007 to 31 December 2013, but still did not pay their Access to healthcare for contributions from 31 December migrants 2013, they must pay their debt since this date, plus a 1% rate Asylum seekers and refugees of interest. The Asylum Seekers Benefits Act

(Asylbewerberleistungsgesetz – Our MdM DE teams treat many AsylbLG) regulates the entitlement of German citizens at MdM’s refugees, asylum seekers, people who programmes. Most of them were hold a residence permit for privately insured before the reform but humanitarian reasons and people with cannot afford the monthly fees a “temporary tolerated stay” (Duldung)) anymore. Some of them also come to state subsidies for medical care. because they were not insured prior to when health insurance became Unlike in most European countries, mandatory and cannot pay their debts. asylum seekers and refugees living in Germany do not have the same With regard to private insurances, this access to healthcare as nationals. is a system of packages (minimum or According to the law, during their first maximum health coverage). There are 15 months (Section 2 AsylbLG) on three cases: German territory, they are only entitled  If an individual had subscribed to basic healthcare services (Section 4 before 31 December 2013 and AsylbLG). did not pay their contributions, On 18 July 2012, Germany’s Federal they had a debt with a private Constitutional Court (BVerfG) declared insurer. This assumes that they that the Asylum Seekers Benefits Act

of 1993 contravenes the Constitution. 174 Law of 15 July 2013, The court said the allowance for http://www.dghm.org/krankenhaushygieneinfek asylum seekers, which is 40% lower tionspraevention/m_432

 Page 55 GERMANY than that for recipients of the very low to the emergency department for care. Hartz IV welfare benefits, the For non-emergency situations, asylum supposed subsistence level in seekers must first request a health Germany, was “evidently insufficient”. voucher (Krankenschein) or health The first chamber of the BVG ordered insurance certificate from the municipal an immediate increase in the benefits. social services department in order to With immediate effect, an unmarried gain access to healthcare. This adult asylum seeker was to receive an document allows them free access to allowance of €359 instead of €224 per the medical services they are entitled month, until the German Parliament to under the law on asylum seekers enacted a new law. (AsylbLG); the care provider is then reimbursed directly. Since 1 March 2015, asylum seekers and refugees are entitled to welfare It is the municipal departments, which benefits after 15 months of having do not have medical expertise, that received benefits under the Asylum decide whether or not to authorise Seekers Benefits Act, instead of the reimbursement for care. In practice, previous 48 months, as regulated in this is a problem, because municipal the 12th Book of the Social Security departments may interpret the law Code (Sozialgesetzbuch)175. Asylum differently. For example, some seekers and refugees may have departments will not issue a health access to healthcare under the same voucher to people with chronic conditions that apply to German illnesses unless there is a severe citizens who receive welfare deterioration in their health. benefits176. However, a reduction in benefits may be applied for more than In contrast, some municipalities 48 months (i.e. without any time-limit) (Bremen and Hamburg, in particular) to people who have “abused the law to have agreements with public health affect the duration of their stay”177. insurance funds and issue health insurance cards to asylum seekers. For the first 15 months, these services While the benefits are the same, this cover “treatment for severe illnesses or saves asylum seekers from having to acute pain and everything necessary request a health voucher every time for curing, improving or relieving the they need access to care. It is also illnesses and their consequences, much easier for health providers. Other antenatal and postnatal care, federal states are discussing the vaccinations, preventive medical tests introduction of this model in their own and anonymous counselling and schemes. screening for infectious and sexually transmitted diseases” (Section 11.5 In most cities in Germany, a health AsylbLG and Section 19 voucher is valid for consultations with Infektionsschutzgesetz). primary care physicians for three months. However, if the general In emergency situations, asylum practitioner refers an asylum seeker or seekers and refugees can go directly a refugee to a specialist, another health voucher has to be requested.

175 If the doctor prescribes medication, the prescription states that the patient is http://www.asylumineurope.org/reports/country /germany/reception-conditions/health-care exempt from co-payments. When a 176 Ibid. chronic illness is diagnosed, a 177 Op. cit. note 175

 Page 56 GERMANY municipal public health department German peers, due to discrimination in physician must confirm the diagnosis health and education services179. The and the need for treatment. study, “Children first and foremost” states that, despite the daily difficulties Pregnant asylum seekers and they encounter, children of refugees refugees have inadequate governmental The Asylum Seekers Benefits Act support, which goes against the (Section 4) contains a special provision principles of the United Nations for pregnant women and for women Convention on the Rights of the Child 180 who have recently given birth. They (CRC) . are entitled to “medical and nursing help and support”, including midwifery Undocumented migrants assistance. Furthermore, vaccination According to the Asylum Seekers and “necessary preventive medical Benefits Act of 1 November 1993 check-ups” must be provided. (AsylbLG), undocumented migrants Therefore, they have normal access to are afforded by law the same access health coverage for antenatal and to health services as asylum seekers postnatal care. who have been in Germany for less than 15 months181. Children of asylum seekers and refugees These health services are less Children of asylum seekers and comprehensive than those provided by refugees are subject to the same the social security scheme because system as adults. However, the law they only cover: stipulates that children can receive  treatment for acute illnesses other care meeting their specific needs and severe pain; (Section 6 AsylbLG), although this  antenatal and postnatal care; provision does not specify the  recommended immunisations; particular treatments that children may  preventive medical tests; and receive. As discussed above, Section  anonymous counselling and 4 AsylbLG stipulates that asylum screening for infectious and seekers and refugees who have been sexually transmitted diseases. in Germany for less than 15 months 178. are entitled to vaccinations According to the Residence Act of 30 However, vaccinations (Section 4.3 July 2004 (Aufenthaltsgesetz – AsylbLG) are not compulsory in AufenthG), Section 87(2)2, which goes Germany, but merely recommended. completely against medical providers The vaccines recommended by the and social services ethics, “Public WHO are free of charge. bodies [with the exception of schools It should be noted that, according to a and other educational and care UNICEF (United Nations International Children's Emergency Fund) report published on 9 September 2014, 179 Z. Dogusan, “Refugee children children of refugees in Germany do not discriminated against in Germany, UNICEF have a standard of living equal to their says”, Daily Sabah, 10 September 2014 http://www.dailysabah.com/europe/2014/09/10/ refugee-children-discriminated-against-in- germany-unicef-says (accessed 15 March 178 List of vaccinations 2015). http://www.bmg.bund.de/themen/praevention/fr 180 Ibid. ueherkennung-und-vorsorge/impfungen.html 181 Op. cit. note 24

 Page 57 GERMANY establishments for young people] shall services, in practice, coverage is notify the competent foreign nationals’ limited to emergency services because registration authority forthwith, if, in the procedure for reimbursing discharging their duties, they obtain undocumented migrants for the costs knowledge of: of emergency care is confidential, while that used for non-emergency  the whereabouts of a foreign care is not. national who does not possess the required residence permit For emergency care reimbursements, and whose expulsion has not healthcare providers request been suspended; reimbursement from social services  a breach of a geographical after the provision of care, a process restriction; that extends the medical confidentiality  any other grounds for expulsion requirement to the social services or; department (as mentioned above).  concrete facts which justify the assumption that the conditions For non-emergencies, undocumented exist for the authorities’ right to migrants seeking reimbursement must contest pursuant to Section themselves approach the social 1600 (1), no. 5 of the Civil welfare office, whose staff then have Code182.” a duty to report them to the administrative authorities and/or the 184 This means that public bodies, with the police . This risk renders access to non-emergency healthcare exceptions mentioned above, including 185 public hospitals, have an obligation to meaningless . As a result, report any undocumented migrants undocumented migrants often choose encountered in the course of their work not to seek treatment nor too bring to the immigration authorities. their children for treatment, even in severe cases, for fear of being It should be noted that, in September reported and expelled from the 2009, thanks to intensive civil society country. advocacy, the Bundesrat issued an instruction183 on the application of the In order to obtain cost-free medication, duty to report. Hospital administrative the same process applies. The and medical staff are bound by undocumented migrants must obtain a health voucher from the social welfare medical confidentiality, as are social 186 services departments, if they obtain office . Office staff are required to information on the status of an report the status of undocumented undocumented migrant in hospital migrants to the police, hindering in emergency departments. practice their access to cost-free medication187. Hence, only those with Even though, in principle, health a “temporary tolerated stay”188 are coverage for undocumented migrants should extend beyond emergency

182 Residence Act of 30 July 2004, 184 Op. cit. note 24 http://www.gesetze-im- 185 Op. cit. note 24 internet.de/englisch_aufenthg/englisch_aufent 186 Op. cit. note 24 hg.html#p1120 187 Op. cit. note 24 183 188 Op. cit. note 182 - Section 60 a (2) 3rd http://dip21.bundestag.de/dip21/brd/2009/0669 sentence (pregnancy is considered – with -09.pdf discretion – as urgent personal grounds).

 Page 58 GERMANY likely in reality to be able to access It should also be noted that if pregnant medicines free of charge189. women do not obtain a temporary tolerated stay, they have to pay all In practice, undocumented migrants do costs. not have real access to healthcare because they are stopped by the so- Children of undocumented migrants called duty to report them. They can The children of undocumented only have access to outpatient migrants are entitled to the provisions services from health providers who of the Asylum Seekers Benefit Act, so would waive their fees, would be they should have the same access to willing to work without being paid and healthcare as the children of asylum would refuse to report undocumented seekers. In theory, immunisations for migrants. children of undocumented migrants Undocumented pregnant women must be provided free of charge. However, due to the duty to report, In principle, undocumented pregnant undocumented families are hindered women should have access to from seeking out primary and healthcare services in the same way secondary healthcare. as women seeking asylum. In practice, cost-free healthcare services are In practice, most children of provided to pregnant women only in undocumented migrants do not have the case of emergency care. access to immunisation. They face paying the full costs of the medical Indeed, because of police reporting consultation (around €45) and the requirements linked to non-emergency costs of the vaccine (€70 per vaccine). healthcare, undocumented pregnant women are afraid to go to hospitals, Termination of pregnancy meaning that only undocumented Section 218a of the Criminal Code191 pregnant women with a temporary which resulted from the adoption of the tolerated stay can access antenatal 21 August 1995 law on antenatal and postnatal care. The temporary assistance and aid to families indicates tolerated stay (Duldung) is only the conditions under which termination granted for a limited time period, when of pregnancy is not considered illegal. the woman is considered “unfit to travel” (generally, according to This section specifies that termination maternity leave law, six weeks before 190 of pregnancy is not punishable if all of and 12 weeks after delivery) . With the following conditions are met: this document, they do not have to pay the costs of antenatal and postnatal  the woman requests the care. procedure;  the woman presents a medical However, for the first six months of certificate proving that she went their pregnancy, the women are not to an approved consultation covered so they do not get appropriate th centre at least three days antenatal care (starting at 12 week at earlier; the latest).  the procedure is performed by a doctor; and

189 Op. cit. note 24 191 Criminal Code s218a, http://www.gesetze- 190 Op. cit. note 24 im-internet.de/stgb/__218a.html

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 the procedure is performed law) are not entitled to welfare within 12 weeks of conception benefits. They have to obtain health (even after a rape with a coverage through private insurance if medical certificate from a they can afford the contributions. psychiatrist). In any case, EU citizens are entitled to assistance in case of emergencies, A termination of pregnancy beyond 12 th weeks is possible, however, if it is according to the 12 book of the medically indicated, that is, if the German Social Security Code. This woman’s physical or mental health can mean, depending on the renders it necessary and the risk circumstances, that the costs for an cannot be dealt with by other means. urgent operation might be reimbursed This provision also applies in cases by social services. where there is a risk of serious Healthcare related to pregnancy is not congenital malformation. seen as emergency care. Therefore, According to the Ministry for Family usually, pregnant EU citizens who Affairs, Senior Citizens, Women and have lost the right to reside are forced Youth, in Germany the cost of or advised by the social welfare office termination of pregnancy is borne to go back to their home country. entirely by the patient and is not Sometimes, the Ministry of Labour and reimbursed. Social Affairs covers the costs of the travel. However, women whose income is below €1,033 per month can be Unaccompanied minors reimbursed by social security. Unaccompanied minors‘ access to Theoretically, female asylum seekers healthcare is organised, by and large, and undocumented women are also in parallel with their care requirements entitled to reimbursement through a based on their residence status and special exceptional remittance from the their care needs due to the absence of GKV. However, access remains very anyone with parental responsibility for difficult for undocumented women, due them192. “If assistance is granted in to the need for a health voucher and accordance with Sections 33 to 35 or the risk of being reported, as Section 35a subsection 2 Nos. 3 or 4 discussed above. [Social Security Code Book VIII], health benefits must also be granted Indeed, the experience of MdM DE as specified in Sections 47 to 52 of the teams has shown that it is very difficult Social Security Code Book XII193. The for female asylum seekers and health benefits granted must meet all undocumented women to obtain of the requirements in each individual reimbursement for termination of pregnancy.

EU citizens 192 A. Muller, “Unaccompanied Minors Access to health insurance and in Germany Focus-Study by the German welfare benefits for EU citizens National Contact Point for the European Migration Network (EMN)”, Federal Office for depends on their working situation and Migration and Refugees, Nuremberg, 2014, on the reason of their stay in Germany. http://www.bamf.de/SharedDocs/Anlagen/EN/ Job seekers and individuals who are Publikationen/EMN/Nationale-Studien- not capable of employment (for health WorkingPaper/emn-wp60-minderjaehrige-in- deutschland.pdf?__blob=publicationFile reasons or on the basis of immigration 193 Ibid.

 Page 60 GERMANY case194. They shall cover any or in law. However, no residence additional charges and contributions.“ permit is granted. (Section 40 Social Security Code Book VIII) This also covers any need In the case of chronic diseases the for psychological care195. foreign nationals’ registration office (Ausländerbehörde) may grant a If an unaccompanied minor has residence permit according to Section already been recognised as an asylum 25.5 AufenthG if a doctor declares that seeker or has been granted subsidiary a person is unable to travel or cannot protection, has been granted refugee stop treatment in Germany. status or a prohibition of expulsion has been established, they are entitled to In addition, if the patient is considered health benefits based on the sections able to travel despite their illness, but of the Social Security Code the treatment required by their commensurate with their situation, condition is not possible their country even if it has been established that of origin or not available to them due to they do not need assistance from the lack of financial resources, a Youth Welfare Office196. residence permit for humanitarian reasons can be issued, in accordance The situation is different in respect of with Section 25.3 AufenthG and unaccompanied minors whose Section 60.7 AufenthG. This residence expulsion has been suspended or who permit is checked by the Federal Office have been granted permission to stay for Migration and Refugees for the duration of the asylum (Bundesamt für Migration und procedure and who have not been Flüchtlinge) in the framework of the granted any assistance by the Youth asylum procedure or readmission Welfare Office197. They are merely procedure of a previous asylum entitled to medical care under the request. Asylum Seekers Benefits Act198. Therefore, they have access to health To obtain a residence permit for packages as quoted above. humanitarian reasons, the applicant must demonstrate to the relevant Protection of seriously ill authorities that there is a serious risk to their health in their country of origin. foreign nationals Data on the national health system and According to Section 60a of the the person’s economic and social Residence Act, a foreign national may situation must be presented. be granted a temporary permit to reside if their continued presence in Prevention and treatment of Germany is necessary on urgent infectious diseases humanitarian or personal grounds or According to the Section 19 of the law due to substantial public interests. As a 199 result, the expulsion of a foreign on infectious diseases , national must be suspended for as undocumented migrants are entitled to long as expulsion is impossible in fact counselling and testing for transmissible diseases and to

194 Op. cit. note 192 199 Law on Preventing and Combating 195 Op. cit. note 192 infectious diseases in humans of 20 July 2000 196 Op. cit. note 192 (Protection against Infection Act), 197 Op. cit. note 192 http://www.gesetze-im- 198 Op. cit. note 192 internet.de/ifsg/__19.html

 Page 61 GERMANY outpatient care (for STIs, TB, hepatitis, etc.). The law also provides for free HIV/AIDS treatment if the patient cannot bear the costs. But the duty to report prevents effective access to care and, in practice, only those with temporary residence permits have access. In most large German cities, such as Cologne or Munich, however, the authorities set up special counselling services for people with STIs (Beratungsstelle für sexuell übertragbare Krankheiten), accessible to all, regardless of legal status. These services were launched many years ago, at first for sex workers and drug users. They offer anonymous services (generally testing and counselling and sometimes consultation with a doctor). Access to HIV and hepatitis treatment, however, is far from being accessible in practice (patients are asked to apply for the voucher).

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for the provision of services to the GREECE population.

National Health System Organisation and funding of Greek healthcare system Constitutional basis The Greek health care system comprises elements from both the Health is enshrined in the Greek 204 Constitution as a social right. Article 21 public and private sectors . In of the Constitution of Greece of 1975 relation to the public sector, elements of the Bismarck and Beveridge models establishes that, “the State shall care 205 for the health of citizens and shall coexist . adopt special measures for the The Greek public healthcare system protection of youth, old age, disability 200 (Ethniko Systima Ygeias – ESY) is and for the relief of the needy” . financed by a mix of public and private resources. Public statutory funding is Historical background based on social insurance. The The founding law of the Greek health primary source of revenue for the system (Law 1397/1983) was passed social insurance funds is the in September 1983 and to date is contributions of employees and considered to be the most significant employers (including contributions by attempt to make a radical change in the State as an employer)206. The the health sector, which would State budget, via direct and indirect tax gradually lead to a comprehensive revenues, is responsible for covering public healthcare system201. This law administration expenditures, funding can be characterized as the foundation health centres and rural surgeries, of the Greek healthcare system202. providing subsidies to public hospitals and insurance funds, investing in The philosophy of the law that capital stock and funding health introduced the notion of the National education207. Health System in its Article 1 was based on the principle that health is a The private sector includes profit- social good and it should be provided making hospitals, diagnostic centres free of charge at the point of delivery and independent practices, financed by the state equitably for everyone, mainly from out-of-pocket payments regardless of social and economic and, to a lesser extent, by private status203. According to its provisions, health insurance. there should be universal coverage, equal access to health services and Recent reforms the State should be fully responsible Before 2011, there were a lot of insurance funds providing coverage for primary, secondary and 200 Constitution of Greece of 1975 (last pharmaceutical care and in some amendment of 2008), cases also coverage for glasses, http://www.hri.org/MFA/syntagma/artcl25.html diagnostic and laboratory tests. The 201 C. Economou,”Greece: Health system review”, Health Systems in Transition, 2010, vol. 12, No. 7, http://www.euro.who.int/__data/assets/pdf_file/ 204 Op. cit. note 201 0004/130729/e94660.pdf 205 Op. cit. note 201 202 Ibid. 206 Op. cit. note 201 203 Op. cit. note 201 207 Op. cit. note 201

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Private Employees’ Fund (Idryma by employees and employers. Kinonikon Asfaliseon – IKA) was the These units are mainly located largest social health insurance fund, in urban areas, covering more offering the most comprehensive than 50% of the population. package, which included almost Their control and management everything except cosmetic surgery. In were transferred from EOPPY to addition, most of the funds provided Regional Health Authorities in income allowances for lost income due 2014; to illness, maternity benefits and  a private insurance system others208. (mainly consisting of complementary insurance) and The establishment of the National a private delivery system which Organisation for Healthcare Provision consist of private hospitals, (EOPYY) (Law 3918/11) was approved diagnostic centres and private by Parliament on 11 February 2011 doctors, most of whom also and it started operating on 1 January have contracts with EOPYY211. 2012. This health insurance reform unified all social and health insurance Functioning of Greek healthcare funds into a central health fund, system EOPYY, which is supervised by the Primary healthcare (PHC) is a key Ministry of Health. element of the Greek health system, In 2014, the Greek Parliament adopted acting both as a point of first contact 212 a primary healthcare law (Law and a gatekeeping mechanism . 4238/14), based on the core values of PHC in Greece is provided by both the Declaration of Alma-Ata, to ensure National Health System and EOPYY better health of the Greek people209. units. However, a large number of self- 213 With this law, Greece intends to build a employed health professionals exist . comprehensive and strong nation-wide 210 More specifically, PHC relies on health primary healthcare service . centres and private or public hospitals In a nutshell, the Greek health system and outpatient clinics, assigned to the is now a mixture of three main National Health System; EOPYY’s components: polyclinics and medical centres; and doctors, nurses, pharmacists,  a tax-based National Health physiotherapists and other self- System that is responsible for employed health professionals public hospitals and health contracted with the EOPYY214. The centres in rural and urban current scheme allows free choice of areas;  an extensive network of polyclinics (previously belonging to insurance funds but transferred to EOPYY), financed 211 N. Polyzos et al., “The introduction of Greek by insurance contributions paid Central Health Fund: Has the reform met its goal in the sector of Primary Health Care or is there a new model needed?”, BMC Health 208 Op. cit. note 201 Services Research, 2014, 209 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4 http://www.euro.who.int/en/countries/greece/ne 255662/pdf/12913_2014_Article_583.pdf ws/news/2014/02/greece-launches-new- 212 Ibid. primary-health-care-law 213 Op. cit. note 211 210 Ibid. 214 Op. cit. note 211

 Page 64 GREECE provider but free choice of insurer is (public and private) healthcare units prohibited215. and health professionals constituting the primary healthcare network220. Structurally, there is a shortage of general practitioners (GPs) in Greece Generally, Greek citizens seem to compared to specialists, there are few prefer inpatient/hospital PHC services, nurses per thousand people and urban as they consider them more areas attract most providers and effective221. In Greece, the system is patients216. based on a “free-choice” model, which means each patient can chose freely The 2011 reform in the Greek health any healthcare provider of the National social insurance market resulted in a Health System or EOPPY222. unified central fund (National Organisation for Healthcare In theory, undocumented migrants and Provision―EOPYY) which individuals without health coverage simultaneously assumed the majority may receive public care223. of primary health care provision217. Accessing Greece healthcare EOPYY’s primary mission is the system provision of health services to All Greek citizens are entitled to employed members, pensioners and access healthcare free at the point of their family dependants registered delivery. Authorised residents in with the merged healthcare funds. Greece are entitled to the same EOPYY unified the majority of access to healthcare as Greek healthcare funds, amongst them the citizens. Formal access to the free Private Employees’ Fund (IKA), the services of the National Health System Public Employees’ Fund (OPAD), the is dependent on registered Farmers’ Fund (OGA) and the Self- employment and regular status. employed/Entrepreneurs’ Fund 218 (OAEE) . Although the EOPYY could theoretically reduce administrative As a result, EOPYY covers over 98% 219 costs and improve access to of people with health coverage . This healthcare, a series of immediate model is similar to the French National measures transferred to a portion of Union of Health Insurance Funds costs to the insured population224. For (UNCAM). example, EOPYY immediately For primary healthcare, EOPYY also restricted access to many essential undertakes the operational health services, such as medical aids, coordination and cooperation between

215 S. Karakolias and N. Polyzos, “The Newly Established Unified Healthcare Fund (EOPYY): Current Situation and Proposed 220 Op. cit. note 211 Structural Changes, towards an Upgraded 221 Op. cit. note 211 Model of Primary Health Care, in Greece”, 222 Op. cit. note 211 Scientific Research, 2014, 223 Op. cit. note 211 http://www.scirp.org/journal/PaperDownload.as 224 D. Niakas, “Greek economic crisis and px?paperID=44338 health reforms : correcting the wrong 216 Ibid. prescription”, International Journal of Health 217 Op. cit. note 215 Services, Vol 43, No 4, 2013, 218 Op. cit. note 215 http://www.iatronet.gr/photos/enimerosi/niakas. 219 Op. cit. note 211 pdf

 Page 65 GREECE glasses, dental care and physiotherapy public budget or other sources (e.g. services225. European Social Fund) on a pre- determined annual basis231. However, Meanwhile, it imposed a 10-25% these budgets targeted only a small medication co-payment for patients part of this population group. with various chronic illnesses and a €25 charge for each hospital Positive reform admission226. On 1 April 2015, the €5 fee at public hospitals and the €1 fee Common ministerial decree no per prescription were removed227. Υ4α/ΓΠ/οικ.48985 The new fund has also increased co- According to the Common ministerial payments for private hospital services, decree no Υ4α/ΓΠ/οικ.48985/2014, starting at 20% and reaching 50% for access to healthcare for individuals farmers. These measures will increase without health coverage but with a the insured population’s out-of-pocket regular legal status has been improved participation at a time when their total under certain conditions. income has decreased by about 228 According to Paragraph 8 of this text, 35% . people entitled to free medical care in The former government started hospitals are: abolishing EOPYY’s existing primary  uninsured people from Greece care structures and services, or people of Greek origin converting it from a medical service (expatriates), EU citizens or supplier with its own doctors and citizens of non-European dentists into a medical services 229 countries, who live permanently purchasing body . and legally in Greece, lack the EOPYY provides free primary care prerequisites in order to obtain a services to the insured population in health booklet and have no urban areas through its salary-based medical coverage through healthcare professionals (some public or private insurance; professionals serve on a contractual  people who had health basis)230. insurance before but lost it due to debts to their insurance fund. The new fund is obliged to cover all citizens, even those who are Who is entitled to benefit from the unemployed or bankrupt (i.e. providing provisions of Paragraph 8 is free access to doctors and medicines, determined by a three-member regardless of insurance status). Those committee of the hospital. Thus, in who are without health coverage each hospital there is a three-member because of the economic crisis or committee which involves the following other reasons could be covered by the sectors: GP, surgical and psychiatric sector. They base their decision on a medical report presented by the patient. 225 Ibid. 226 Op. cit. note 224 227 In practice, the fact that a committee http://www.tovima.gr/files/1/2015/04/01/docum has to decide on a case-by-case basis ent%20(1).pdf who has the right to free medical care 228 Op. cit. 224 229 Op. cit. 224 230 Op. cit. note 224 231 Op. cit. note 224

 Page 66 GREECE is a considerable barrier. It requires a Access to healthcare for long time to process all the files. migrants Therefore, this new health regulation does not mean that all individuals Asylum seekers and refugees without health coverage now have access to care. Access to healthcare is In theory, refugees and asylum still not granted for many people. seekers have equal access to Moreover, hospital emergency healthcare to Greek citizens. A departments decide whether a Common ministerial decision ΚΥΑ patient’s case should be described as Υ4α/48566/05 foresees free healthcare an emergency or not. for asylum seekers and refugees without health coverage who cannot Repeal of measure 39A of the Health Act cover the related expenses. To access A Ministerial Decision published in the free healthcare, asylum seekers must Government Gazette on 17 April hold a special asylum seeker’s card 2015232 finally repeals the and refugees must hold a special ID 233 of measure 39A of the Health Act. This card for political refugees . The same law was implemented by Andreas applies (Presidential Decree 266/1999) Loverdos and was then repealed in for foreign-born individuals whose stay 2013 by the Minister of Health (Fotini in Greece has been permitted on Skopouli, of Democratic Left) before humanitarian grounds and has not yet 234 being reactivated by the Minister of expired . Health (Adonis Georgiadis, far right). Moreover, Article 14 of the Presidential Decree 39A has been the cause of Decree 220/2007 on the transposition hundreds of police operations since into the Greek legislation of Council 2012, mainly targeting drug users and Directive 2003/9/EC from January 27, sex workers. In fact, the law allowed 2003 laying down minimum standards the authorities to conduct forced HIV for the reception of asylum seekers, tests on citizens with the help of states that “applicants [for refugee security forces. status] shall receive free of charge the necessary health, pharmaceutical and Several women were detained during hospital care, on condition that they the election campaign in 2012. They are uninsured and financially indigent. were arrested and then forced to Such care shall include: a. Clinical and undergo HIV screening and were medical examinations in public detained for several months merely hospitals, health centres or regional because they were HIV positive. medical centres. Medication provided on prescription from a medical doctor It is thus a positive development that serving in one of the above institutions the current Greek authorities (April and acknowledged by their director. c. 2015) have decided to repeal this Hospital-based care in public hospitals, measure which violates human rights class C of hospitalisation. 2. In all and affects human dignity.

233 D. Balourdos, “Making a success of integrating immigrants into the labour market”, National Centre for Social Research (EKKE), 2010, 232 http://ec.europa.eu/social/BlobServlet?docId=8 https://omniatv.com/images/easyblog_images/ 213&langId=en 62/fek-katarghsh-39A.pdf 234 Ibid.

 Page 67 GREECE cases, emergency aid shall be healthcare for undocumented provided to applicants free of charge migrants236. (…)”235. In particular, Article 26§1 Law Thus, in principle, asylum seekers and 4251/2014 states that “public services, refugees who are destitute and without legal entities of public law, local health coverage have free access to authorities, public utilities and social hospitals and medical care. However, security organisations shall not provide in addition to the negative their services to third-country nationals repercussions of the financial crisis on who do not have a passport or any the health sector in Greece, asylum other travel document recognised by seekers who seek access to health international conventions, an entry visa services require, in some cases, prior or a residence permit and, generally, approval by a committee. who cannot prove that they have entered and reside legally in Greece. In practice, this has led to significant Third-country nationals who are administrative barriers, including more objectively deprived of their passport stringent procedures for undergoing shall be given the right to transact with surgery and to access other medical the agencies referred to above, simply supplies, and refusal or restriction of by showing their residence permit”. the provision of health services to asylum seekers by the public hospitals. In addition, Article 26.2a states that “the arrangements of the previous Pregnant asylum seekers and refugees paragraph shall not apply to hospitals, Pregnant women seeking asylum and treatment centres and clinics in the pregnant refugees should have access case of third-country minors and to antenatal and postnatal care. It nationals who are urgently admitted for should include pregnancy termination. hospitalisation and childbirth, and the social security structures which Children of asylum seekers and refugees operate under local authorities”. Children of asylum seekers have the same access to primary and Thus, according to the circular of the secondary healthcare, including Ministry of Health (OIK/EMΠ immunisation as nationals and 518,2/2/2005) undocumented migrants authorised residents. in Greece are not entitled to healthcare, with the exception of Undocumented migrants emergency situations and until stabilisation of their health is In Greece, there is a legislation 237 prohibiting care beyond emergency achieved . It should also be noted care for adult undocumented migrants.

The new Migration Code, implemented 236 A. Triandafyllidou, “Migration in Greece by Law 4251/2014 and repealing Law Recent Developments in 2014”, Hellenic 3386/2005, continues to prohibit Foundation For European and Foreign Policy, 2014, http://www.eliamep.gr/wp- content/uploads/2014/10/Migration-in-Greece- Recent-Developments-2014_2.pdf 237 I. Kotsioni and P. Hatziprokopiou, “STATE OF THE ART REPORT ON THE GREEK CASE”, Mighealthnet: Information network on good practice in health care for migrants and 235 Presidential Decree of 2007, minorities, http://www.refworld.org/docid/49676abb2.html http://www.mighealth.net/el/images/f/f7/Greek_

 Page 68 GREECE that Law 2910/2001 expressly In practice, they mostly only have excludes minors so they should have access to emergency care. They may access to healthcare. also have free access to vaccination at those Mother and Child Protection The circular Υ4α/οικ 93443/11 of 18 Centres which have not closed down August 2011 states that patients who during the social and economic crisis. present at a hospital are first examined by doctors from the emergency EU citizens departments who decide on whether a In accordance with Directive patient’s case is an emergency or not. 2004/38/EC of the European The decision is then at the discretion of Parliament and of the Council of 29 the medical professionals whether or April 2004, after three months destitute not access to healthcare is granted. EU citizens are considered to be undocumented migrants. They have Undocumented pregnant women the same access to healthcare as By law (Article 26.2 of Law third-country nationals. This means 4251/2014), undocumented pregnant Law 4251/2014 (Article 26.1 and 26.2) women have access to care during applies to them and they only have delivery. However, they do not have access to emergency care. access to antenatal and postnatal care. Since the article explicitly Unaccompanied minors includes only delivery care, they do not According to Article 19 of Directive have access to pregnancy termination. 2003/9/EC, which sets out minimum standards for the reception of asylum Thus, undocumented pregnant women seekers, unaccompanied minors must do not have access to antenatal care be placed in accommodation centres and postnatal care. For pregnancy with special provisions for minors, a termination, they have to pay condition incorporated in the new approximately €340 in public hospitals. Directive 2013/33/EC which provides It should be noted that Article 41 of for a general ban on detaining minors Law 3907/2011 establishes that except under “exceptional undocumented pregnant women may circumstances” (Article 11, paragraph not be removed from the territory 3). during their pregnancy and for six For each unaccompanied child, the months after delivery. Public Prosecutor for Children or the Children of undocumented migrants First Instance Prosecutor is informed and acts as the temporary guardian for In theory, children of undocumented the child and undertakes the migrants should have access to necessary actions for the appointment healthcare as they are explicitly not of a guardian238. Given the particular included in the law prohibiting access characteristics of unaccompanied to care for undocumented adults children, as well as their numbers, the beyond emergencies. However, it also means that there is no specific legislation explicitly providing them 238 with healthcare. United Nations High Commissioner for Refugees Greece, Current Issues of Refugee Protection in Greece, July 2013, https://www.unhcr.gr/fileadmin/Greece/News/2 State_of_the_Art_Report_English_Summary.p 013/PCjuly/Greece_Positions_July_2013_EN. df pdf

 Page 69 GREECE effective exercise of guardianship despite the fact that Article 32 of Law functions by temporary or permanent No 3907/2011 (implementing Directive guardians becomes particularly 2008/115/EC) stipulates that minors difficult, resulting in children not being and families with minor children should able to enjoy the protection and rights only be detained as a measure of last enshrined in the CRC239. resort, and only if no other adequate but less burdensome measures can be The large influx of asylum seekers to taken, and for the shortest appropriate Greece has overwhelmed existing period of time. The reasons for centres, so that minors are held in detaining children for longer or shorter inappropriate facilities for long periods periods appear to be arbitrary242. of time. As noted by representatives of the Ombudsman and the When arriving in Greece, Marangopoulos Foundation for Human unaccompanied children are not Rights, who visited the Amygdaleza accurately or adequately identified detention centre in Athens on 9 (including through proper age October 2014, the conditions of the assessment procedures)243. detention of unaccompanied minors at this centre failed to comply with even Reception capacity for children is the most basic European standards, insufficient (currently there are nine since unaccompanied minors are held special centres for unaccompanied together with adults and hygiene and children, with capacity for medical services are non-existent240. approximately 400 persons and no reception facility to provide for the Greek law does not prohibit or regulate special needs of children under the the administrative detention of children age of 12)244. There is no who enter Greece without valid papers institutionalised procedure for and the authorities detain determining the best interests of the unaccompanied children, either on child, a guiding principle of the arrival or when they are found without protection of children according to valid documents, for periods of ranging international standards and Greece’s from a few hours to several days or obligations as a signatory to the months241. These situations happen CRC245. As a result of existing shortcomings in Greece’s child protection system, unaccompanied 239 Ibid. 240 minors remain in administrative MARANGOPOULOS FOUNDATION FOR HUMAN RIGHTS, Visit-Autopsy of the MFHR detention, often for a long time, in delegation to the Immigration Pre-removal contravention of applicable national Detention Centre (YFEKA), Amygdaleza, and international law246. Athens, Greece, http://www.antigone.gr/files/news/MFHR%20R The new Government, elected on 25 eport_Visit- January 2015, particularly the Minister Autopsy%20at%20Immigration%20Pre- removal%20Detention%20Centre.pdf of Migration Policy, Tasia 241 Platform for International Cooperation on Christodoulopoulou has announced Undocumented Migrants (PICUM), that minors will no longer be held in Recommendations to the European Union to Urgently Address Criminalisation and Violence Against Migrants in Greece, Brussels, 2014, http://picum.org/picum.org/uploads/publication/ 242 Ibid. Recommendations%20to%20address%20crimi 243 Op. cit. note 238 nalisation%20and%20violence%20against%20 244 Op. cit. note 238 migrants%20in%20Greece_Reprint%20May% 245 Op. cit. note 238 202014_2.pdf 246 Op. cit. note 238

 Page 70 GREECE detention centres and that reception they are suffering from an infectious centres for children will improve. disease; if they belong to a group vulnerable to infectious diseases (with Protection of seriously ill assessment permissible on the basis foreign nationals of country of origin); if they are an 247 intravenous drug user or a sex worker; Article 44.1e of Law 3386/2005 of or if they live in conditions that do not June 2005 was amended by Article 42 248 meet minimum standards of of Law 3907/2011 . hygiene249. MdM EL team reports that in some cases the decision was taken The latter states that “by decision of exclusively by Police officers. the Ministers of Interior, Public Administration and Decentralization HIV testing and treatment and of Employment and Social Protection, residence permits may be Since the Circular Υ4α/οικ 93443/11 of issued for humanitarian reasons to (…) 18 August 2011 was adopted, HIV persons suffering from serious testing and treatment are free for all health problems. Serious health people living in Greece, regardless of problems and the length of treatment their legal status and health coverage. shall be verified by a recent certificate Thus, it includes Greek citizens without from a or IKA clinic. In health coverage and undocumented the event that the health problem migrants. relates to an infectious disease, the consent of the Minister of Health and Social Solidarity that they pose no threat to public health shall be required for the issuance of the said decision. For the issuance of the permit in [this case], the applicant must hold a prior residence permit. The length of the permit shall be up to one year and may be renewed for an equal period each time”.

Prevention and treatment of infectious diseases

Detention on public health grounds Law 4075 of April 2012 providing for the detention of migrants and asylum seekers on public health grounds is still in force. The law permits the detention for up to 18 months of a migrant or asylum seeker who represents a danger to public health: if

247 Law of June 2005, http://www.refworld.org/docid/4c5270962.html 248 Law of 26 January 2011, http://www.refworld.org/docid/4da6ee7e2.html 249 Op. cit. note 238

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their salaries with half paid by the LUXEMBOURG employer253. Long-term care is financed through National Health System separate insurance called “assurance dépendance”254. This is funded Constitutional basis through by contributions from all active Article 11 § 5 of the 1868 Constitution workers and retired individuals. They provides for the right to healthcare as all pay a 1.4% contribution on all their follows: “The law regulates […] social professional and real estate incomes. security, the protection of health, the These contributions are also rights of workers, [and] the struggle complemented by State and electricity against poverty and the social sector funding255. integration of citizens affected by disability”250. Accessing Luxembourg healthcare system Organisation and funding of According to Article 1 of the Social Luxembourgish healthcare system Security Code, health insurance is The financing of Luxembourg’s compulsory in Luxembourg256. healthcare system is based on social participation by employees and The system allows access for basic healthcare free at the point of entry to employers and also on public funds 257 contributed by the State. The all citizens . Nonetheless, one of the contributions from employees and key issues in Luxembourg is that employers amount to approximately access to healthcare and social half of the budget. The State protection is directly linked to the contribution is funded through general patient’s registered address. tax income251. State benefits for destitute people are The necessary financial resources to paid for healthcare contributions, as fund the health system are based on though the benefit authority were contributions, except for the financing paying the contributions in the way an of maternity care paid by the State252. employer would. The rate amounts to 5.2% divided equally between the In practice, all employees benefit authority and the beneficiary258. automatically contribute 5.44% of their gross income on average (with a All dependent family members are covered by contributing family maximum contribution of €6,225) to the 259 National Health Fund (Caisse members . Students and Nationale de Santé – CNS). The contribution is deducted directly from 253 http://www.europe- cities.com/en/633/luxembourg/health/ 254 http://www.sante.public.lu/fr/remboursements- indemnites/assurance-dependance/index.html 255 Op. cit. note 254 250 Constitution of Luxembourg of 1868 (last 256 Social Security Code, updated 1 August 2013), http://www.legilux.public.lu/leg/textescoordonn http://www.legilux.public.lu/leg/textescoordonn es/codes/code_securite_sociale/code_securite es/recueils/Constitution/Constitution.pdf _sociale.pdf 251 http://www.sante.public.lu/fr/systeme- 257 Op. cit. note 250 sante/financement/ 258 Op. cit. note 253 252 Ibid. 259 Op. cit. note 256

 Page 72 LUXEMBOURG unemployed children are covered up than 15 days beforehand and the until 27 years of age260. amount must be less than €100265.

The national healthcare system Since 1 January 2013, and in covers the majority of treatment accordance with Article 24.2 of the provided by general practitioners Social Security Code, if authorised and specialists as well as laboratory residents in Luxembourg are not able tests, pregnancy, childbirth, to pay their healthcare costs in rehabilitation, prescriptions and advance, they can apply to the hospitalisation261. relevant Social Welfare Office for Third-party Social Payment (tiers All medical fees in the country are set payant social – TPS)266. by the illness insurance fund. Fees are revised on an annual basis. By law, all According to the law, TPS can be healthcare providers must observe granted to any resident in these fees and there are strict Luxembourg. The Social Welfare penalties for abuse of the system262. Office is the only body which is competent to assess whether or not an The patient must pay all costs and individual should benefit from it267. then submit receipts to the CNS for reimbursement. The amount received When a person is granted TPS, they as a reimbursement varies from 80% are given a certificate and a book of to 100%. Thus, the first consultation is labels268. From this point on, they will reimbursed at 80% and further not have to pay in advance for any consultations which occur within 28 care. When they access healthcare days are reimbursed at 95%263. they are asked to give the practitioner a label and the CNS will pay directly Usually the reimbursement for for each episode of care. Indeed, the prescription medicine is 78%, although practitioner after receiving the patient there are four categories of will send the prescription to the CNS reimbursement for prescription together with the label, in order to medicine and levels range from 0% to obtain payment269. 100%264. The aim of TPS is to facilitate access If a patient has paid healthcare fees in to healthcare for people with limited advance and is not willing to wait for a income270. It can be granted for three bank transfer to be reimbursed, they months, six months and, exceptionally, can also be reimbursed via a bank one year. At the end of the three cheque. There are two conditions for months, the beneficiary can ask the reimbursement by cheque: the Social Welfare Office for an payment must have been made less extension271.

260 Op. cit. note 256 265 http://www.cns.lu/ 261 266 http://www.cns.lu/assures/?m=97-0- http://www.pacificprime.com/country/europe/lu 0&p=281 xembourg-health-insurance-pacific-prime- 267 Ibid. international/ 268 Op. cit. note 265 262 Op. cit. note 253 269 Op. cit. note 265 263 Op. cit. note 253 270 Op. cit. note 265 264 Op. cit. note 253 271 Op. cit. note 265

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Access to healthcare and social available for consultation but an protection in Luxembourg are directly appointment is necessary275. linked to the patient’s address. In other words, if an individual does not have a Prescription drugs can only be proper registered address they will not prescribed by doctors and consultants be able to access social protection. and the costs are also reimbursed by This is why Doctors of the World – the Caisse Nationale de Santé. Non- Médecins du monde (MdM) prescription drugs are priced much higher and are generally not Luxembourg currently mostly treats 276 homeless people. reimbursed . Although 99% of the population is Access to healthcare for covered by the state healthcare migrants system, private healthcare is also available and about 75% of the Asylum seekers population purchases additional health insurance coverage, which is mostly According to Article 6 of the Law on used to pay for services categorised as asylum and other complementary non-essential under the compulsory forms of protection of 5 May 2006, schemes and provided by non-profit anyone seeking protection may agencies or mutual associations present their asylum claim at the border or when they already are inside (mutuelles), which are also allied to the 277 Ministry of Social Security272. the country . However, there are no private This law was modified by the hospitals in Luxembourg, as all regulation on the conditions and details for accessing social aid for asylum hospitals are state-run by the CNS and 278 patients must have a referral from their seekers on 8 June 2012 . doctor for an admission to hospital, Article 1 §3 of this legislation provides unless it is an emergency273. In that asylum seekers are entitled to free practice, people go to hospitals even if access to basic healthcare and that they do not have a referral from a their insurance fee is paid by the State, doctor. which allows them to have the same access to healthcare as any other In theory, all emergency care is 279 provided at large hospitals and is citizen . 274 It is free at the point of use . Also, asylum seekers are entitled to important to stress that, , in practice free housing and food distribution, as when patients with no insurance arrive well as a monthly allocation of €25 for at hospitals in order to get emergency adults, €12.50 for minor children and care they are asked for a financial guarantee before they are treated.

Luxembourg also has specialist 275 http://www.expatica.com/lu/visas-and- hospitals and specialist doctors permits/Healthcare-in- Luxembourg_105466.html 276 Ibid. 272 277 Law of 5 May 2006, https://healthmanagement.org/c/it/issuearticle/ http://eli.legilux.public.lu/eli/etat/leg/loi/2006/05/ overview-of-the-healthcare-system-in- 05/n1 luxembourg 278 Regulation of 8 June 2012, 273 Ibid. http://www.refworld.org/docid/3df5ff614.html 274 Op. cit. note 272 279 Ibid.

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€25 for unaccompanied minors aged Moreover, children of undocumented between 16 and 18 years280. migrants have access to inclusive healthcare only if they are In cases where it is not possible to unaccompanied, whereas children of provide access to food, the monthly undocumented migrants living with allocation is €225 for adults, €300 for their families often face considerable couples, €200 for additional adults, difficulties in accessing basic €173 for teenagers between 12 and 18 preventive and follow-up care285. years old, €140 for children under 12 years of age and €225 for With regard to this issue, the European unaccompanied minors between 16 Committee of Social Rights, (Council of and 18 years of age281. Europe), issued conclusions in 2013 on the conformity of Luxembourg’s In the first three months of their stay, health system regarding the European asylum seekers may apply to the Social Charter286. These conclusions Luxembourg Reception and Integration are quite revealing concerning Agency (Office luxembourgeois de undocumented migrants’ access to l’accueil et de l’intégration – OLAI) emergency care. which will pay for all emergency care through a system of tickets282. The report concludes that Luxembourg’s legislation and practice From the fourth month onwards, the do not guarantee that all foreign National Health Fund will pay for the 283 nationals in an irregular situation can insurance as mentioned above . benefit from emergency care for as long as they may need to. The Undocumented migrants Committee notes that there is no Undocumented migrants include visa specific legislation concerning or permit “overstayers”, rejected undocumented migrants’ access to asylum seekers and individuals who health. Moreover, their access to have entered the country without a emergency care has been limited to permit. In Luxembourg, undocumented two or three days287. migrants have no access to healthcare284. Nevertheless, the Committee underlines the fact that “medical aid

285 Platform for International Cooperation on 280 Op. cit. note 278, Article 8. Undocumented Migrants (PICUM), Preventing 281 Op. cit. note 278, Article 8. undocumented pregnant Women and Children 282 Guide to access medical healthcare to from Accessing health Care: fostering health applicants for international protection, rejected inequalities in Europe, March 2011, asylum seekers and undocumented migrants http://picum.org/picum.org/uploads/publication/ in Luxembourg, Public%20hearing%20on%20access%20to%2 http://www.asti.lu/media/asti/pdf/guide_msf.pdf 0health%20care%20for%20undocumented%2 283 Luxembourg Red Cross, Nadia Conrardy, 0pregant%20women%20and%20children%20- Luxembourg report, %208%20December%202010_1.pdf http://www.roteskreuz.at/fileadmin/user_upload 286 European Social Charter, European /PDF/Site/Mental_Health/Luxembourg.pdf Committee of social rights, Conclusions, 284 Bernd Rechel et al., “Migration and health Conclusions XX-2 (2013), (LUXEMBOURG) in the European Union”, European Articles 3, 11, 12, 13 et 14 of the 1961 Charter, Observatory on Health Systems and Policies, March 2014, 2011, http://www.coe.int/t/dghl/monitoring/socialchart http://www.euro.who.int/__data/assets/pdf_file/ er/Conclusions/State/LuxembourgXX2_fr.pdf 0019/161560/e96458.pdf 287 Ibid.

 Page 75 LUXEMBOURG covering all urgent care is ensured and the woman’s health. A doctor has the that a “street ambulance” provides all right to refuse to perform a pregnancy needed diagnosis, advice, treatment termination. and medication all year round to people without health insurance, The cost of a pregnancy termination is 288 reimbursed by the social security including undocumented migrants” . 291 We have no evidence that it is service . sufficient to cover all the needs. Protection of seriously ill Termination of pregnancy foreign nationals A reform was passed on 21 In Luxembourg, the Immigration December 2012, since when the Medical Department makes sure that termination of pregnancy system in the organisation of the medical part of Luxembourg has been centred on the 2008 law on the free circulation of the provision of information and people and immigration is properly 289 advice to pregnant women . implemented292. Termination of pregnancy is legal in This service has four principal Luxembourg up to 12 weeks from the missions: to organise the medical 290 date of conception , provided that: check-ups of third-country nationals, to assess whether or not foreign  The woman has obtained a nationals may have their expulsion certificate, information and from Luxembourg deferred for medical documentation after consulting a reasons, to assess whether or not specialist in gynaecology and foreign nationals may stay in obstetrics at least three days Luxembourg in order to receive beforehand medical treatment which is not covered  A licensed specialist in by social security and to give advice on gynaecology and obstetrics limitations to the right for EU citizens carries out the termination of and their family members to circulate pregnancy and provides 293 and live freely in Luxembourg . information on psychosocial support and counselling According to the Law of 26 June 2014294, the Immigration Medical The consent of the parents, guardians Department must issue medical advice or a judge is required for minors under when requested by the Ministry of 18. Immigration in order for the expulsion of an individual from the country to be Under exceptional circumstances (life- 295 threatening risk to the mother or the deferred . unborn child), a pregnancy termination may take place after 12 weeks. In these cases two physicians must state 291 Ibid. in writing that there is a serious risk to 292 http://www.sante.public.lu/fr/impacts-milieu- vie/sante-travail/007-service-medical- immigration/ 288 Op. cit. note 286 293 Ibid. 289 294 Law of 26 June 2014, http://www.luxembourg.public.lu/fr/actualites/2 http://eli.legilux.public.lu/eli/etat/leg/loi/2008/08/ 012/12/21-avortement/index.html 29/n1 290 295 http://www.sante.public.lu/fr/impacts-milieu- http://luxembourg.angloinfo.com/information/he vie/sante-travail/007-service-medical- althcare/pregnancy-birth/termination-abortion/ immigration/020-sursis-eloignement/index.html

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A foreign national may benefit from cannot receive the treatment in such a deferment if their health their country303. conditions require treatment which  An agreement from the health cannot be refused to them without establishment for the admission serious consequences for their of the patient on a certain date, health296. signed by the head of the service which will treat the It is also necessary to prove that the patient304. person concerned is not able to get the  An estimate of the cost of the treatment in the country they are about 297 treatment and proof that the to be sent back to . financing of it are guaranteed by the person305. If all the requirements are met, the individual will obtain a deferment of expulsion for a maximum of six Prevention and treatment of months298, with the possibility of infectious diseases 299 renewal not exceeding two years . In Luxembourg, the Ministry of Health If after two years the individual’s health has adopted a national strategy and an action plan to fight against HIV/AIDS state has not improved and still needs 306 the treatment, then they can apply for (2011-2015) . a residency permit for medical 300 In this plan, it is stated that migrants reasons . face multiple vulnerabilities such as increased risk to infectious The deferment can be extended to 307 members of the individual’s family. diseases . The government has People who benefit from such a assessed the need to raise awareness deferment receive a certificate of regarding these diseases and the necessity for these migrants to access deferment which grants them 308 healthcare and access to social aid301. free HIV screening tests . No specific For a foreign national who wants to mention is made for undocumented have access to a specific medical migrants. treatment in Luxembourg, different There are national health facilities documents have to be presented to which provide such services for free authorities:  Medical certificates proving the necessity of such a treatment, with specific mention of the type of treatment and its length302. 303 Op. cit. note 294, Article 130.  A certificate from the medical 304 http://www.sante.public.lu/fr/impacts-milieu- authorities from their country of vie/sante-travail/007-service-medical- origin proving that the person immigration/030-soins-etrangers-luxembourg/ 305 Ibid. 306 Ministry of Health of the Grand Duchy of Luxembourg, National strategy and action plan regarding the fight against HIV/AIDS 2011- 296 Ibid. 2015, 297 Op. cit. note 295 http://www.sante.public.lu/publications/rester- 298 Op. cit. note 294, Article 131. bonne-sante/sida-prevention/strategie-plan- 299 Op. cit. note 294, Article 131. action-vihsida-2011-2015/strategie-plan- 300 Op. cit. note 294, Article 131. action-vihsida-2011-2015.pdf 301 Op. cit. note 294, Article 132. 307 Ibid. 302 Op. cit. note 294, Article 130. 308 Op. cit. note 306

 Page 77 LUXEMBOURG and anonymously. There are six of them throughout Luxembourg309. The Ministry of Health or the National Health Fund in Luxembourg should cover payment of treatment for people who are not insured or are unable to afford it310. Nonetheless, the Ministry of Health has recognised that a number of administrative barriers often impede vulnerable groups in accessing treatment when they need it311. Moreover, in relation to the treatment of infectious diseases in Luxembourg, on 27 February 2015 the government adopted a regulation creating a special Monitoring Committee for HIV, hepatitis and other sexually transmissible infections312. This Committee will be mandated to inform the public, targeted groups and professionals about all issues regarding these infections, to collaborate with national and international organisations to develop programmes in order to fight against HIV, to provide advice on all questions relating to this issue, and to propose measures to improve the prevention of and fight against infectious diseases313.

309 http://www.dimps.lu/files/mds-sida- annoncea4-hd-.pdf 310 Op. cit. note 306 311 Op. cit. note 306 312 Regulation of 27 February 2015, A-n°47 du 13 mars 2015, Règlement du Gouvernement en Conseil du 27 février 2015 portant institution d’un Comité de surveillance du syndrome d’immunodéficience acquise (SIDA), des hépatites infectieuses et des maladies sexuellement transmissibles 313 Op. cit. note 312, Article 1.

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Netherlands in 2012 amounted to NETHERLANDS €92.7 billion316, while the Dutch health administration estimates the total National Health System expenditure for the health scheme for undocumented migrants in 2013 to be Constitutional basis €29.8 million, i.e. still far below 0.0005% of total health expenditure. According to the Dutch Constitution, the government has a duty to ensure Accessing the Netherlands social security for all and to ensure the healthcare system distribution of wealth (Article 20), as well as public health (Article 22)314. Taking out standard (private) health insurance is obligatory for authorised Articles 1 (equal treatment), 10 (the 317 right to respect and protection of residents . An open enrolment personal privacy) and 11 (the right to system obliges insurers to accept any the inviolability of one’s person) are application for insurance; they cannot also relevant to the right to health. “risk assess” to deny coverage to individuals deemed to be “high-risk” on account of their age, gender or health Organisation and funding of Dutch 318 healthcare system profile . All insurance providers offer the same standard package. This Since 2006, a dual system of public package includes GP visits, outpatient and private insurance for curative care treatments in hospital, hospitalisation, has been replaced by a single emergency treatment, transport to the compulsory health insurance scheme. hospital, antenatal, delivery and Competing insurers (allowed to make a postnatal care and mental healthcare profit) negotiate with providers on price (individual psychological and quality, and patients are free to consultations)319. Contraception is not choose the provider they prefer and included in the basic package. join the health insurance policy which best fits their situation. According to the European Observatory on Health Systems and Policies, primary care is well-developed, with GPs acting as gatekeepers to the system in order to prevent unnecessary use of more expensive secondary care. The 316 government’s role is limited to http://www.cbs.nl/NR/rdonlyres/B3173C43- 368C-4190-8D9C- controlling quality, accessibility and 315 88E6BBF2CBE8/0/2013c156puberr.pdf affordability of healthcare . 317 Health Insurance Act of 16 June 2005, Article 2, According to Statistics Netherlands, http://wetten.overheid.nl/BWBR0018450/Hoofd the total expenditure for health in the stuk2/Paragraaf21/Artikel2/geldigheidsdatum_ 06-02-2015 318 Civitas, Health care Systems: The Netherlands, By Claire Daley and James Gubb 314 updated by Emily Clarke (December 2011) and http://wetten.overheid.nl/BWBR0001840/geldig Elliot Bidgood (January 2013), heidsdatum_21-05-2015 http://www.civitas.org.uk/nhs/download/netherl 315 W. Schäfer et al., “Germany: Health system ands.pdf review”, Health Systems in Transition, vol 12, 319 No 1, 2010, http://www.rijksoverheid.nl/onderwerpen/zorgv http://www.euro.who.int/__data/assets/pdf_file/ erzekering/vraag-en-antwoord/basispakket- 0008/85391/E93667.pdf zorgverzekering-2015.html

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Pregnancy termination is not included have been raised for the lowest either, but is fully reimbursed under the incomes, although the average Dutch Law on Long-term Healthcare320. citizen will have to pay for a larger part To cover costs not included in the of their insurance themselves322. In standard package, for example July 2014, the Ministry of Health physiotherapy or dental care, people denied the trend of increased may opt to take out additional avoidance of seeking healthcare323 insurance. The premium for this extra that was denounced by the national package is freely established by GP association324. private insurers. When accessing healthcare services Once they have paid the franchise and treatment, people first need to pay (see below), insurance holders do not a franchise (their “own risk”), which is have to pay any costs for services currently – as defined by law – at least included in the standard package – €375 a year, but can go up to €875 there is no out-of-pocket expenditure. depending on their chosen insurance However, they do need to pay elevated formula325. An increasing number of monthly premiums for health patients facing poverty have difficulty insurance. These currently range from paying this franchise. In order to pay €82 to €112 per month. Prices vary lower monthly premiums, they often between providers, but also depending opt for a higher franchise – a tempting on age, sex, residence and which offer as long as one doesn’t fall formula the individual chooses: access to a limited number of contracted care providers (versus a larger or even the income ceiling was €35.059 in 2012 and unlimited choice), opting in or out of €30.939 in 2013. (partial) reimbursement of dental care, http://www.rijksoverheid.nl/onderwerpen/zorgto glasses and the degree of “own risk” eslag/vraag-en-antwoord/wanneer-heb-ik- (see below). In addition, an income- recht-op-zorgtoeslag.html. 322 dependent employer contribution is http://www.zorgkeus.nl/zorgverzekering/zorgto deducted through the employee’s eslag-10-euro-omhoog-voor-laagste-inkomens payroll and transferred to a Health 323http://www.rijksoverheid.nl/ministeries/vws/d Insurance Fund. ocumenten-en- publicaties/kamerstukken/2014/07/28/beantwo Authorised residents on a low ording-kamervragen-over-onderzoek- huisartsen.html are eligible for healthcare 324 income benefits. Single people with yearly https://www.lhv.nl/actueel/nieuws/zorgmijden- incomes lower than €26,316 have a neemt-steeds-zorgwekkender-vormen-aan right to financial help; for couples the 325 The amount of the franchise has drastically income ceiling is €32,655. A single been raised over the past few years: from person can receive monthly help up to €150 in 2008, €220 in 2012, €350 in 2013, €360 in 2014, to €375 in 2015. Reforms of the €78, couples up to €149 a month. Only insurance systems have been announced by people with limited capital have a right the Ministry of Health in February 2015, in to these benefits321. In 2015, benefits order to improve the “quality and affordability of healthcare”, that will include encouraging insurance providers to offer insurance packages with a lower franchise (e.g. 320 interesting for the chronically ill) http://www.rijksoverheid.nl/onderwerpen/zorg- http://www.rijksoverheid.nl/ministeries/vws/doc in-zorginstelling/wet-langdurige-zorg-wlz umenten-en- 321 The ceiling has been systematically publicaties/kamerstukken/2015/02/06/kamerbri lowered, thereby limiting the number of people ef-over-verbeteren-kwaliteit-en-betaalbaarheid- with a right to benefits. e.g. for a single person, zorg.html

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NETHERLANDS seriously ill. The franchise does not determined by the 1981 Termination of apply to care for minors (nor does it Pregnancy Act330). The gestational apply to their dental care), GP visits, limit stated in the Law is 24 weeks antenatal care, or for integrated care (based on foetal viability), but schemes for chronic diseases (e.g. according to a 2012 International diabetes)326. Vaccinations are freely Planned Parenthood Federation report, accessible for all children through clinics “stick to 22 weeks”331. preventive frontline infant consultations (0-4 years), and according to the In case a late termination is needed – national immunisation calendar327. after 24 weeks – doctors are obliged to report these to a central committee332. Authorised residents who do not take Under the Directions on the Non- out obligatory insurance are Prosecution of Cases of Euthanasia proactively contacted by the National and Late Abortions, late-term Healthcare Institute (Zorginstituut termination is authorised when an Nederland), asking them to take out unborn baby has an untreatable insurance within three months. Those disease expected to lead inevitably to who do not take out insurance are its death during or immediately after fined €332.25 – up to two times – birth, or if an unborn baby has a before the institution automatically disease that has led to serious and contracts health insurance for them irreparable impairment, where only a and deducts the insurance premiums small chance of survival exists. automatically from the income of the newly insured individual328. Those who A termination may only be performed do not pay their monthly premiums by a physician in a licensed hospital or face financial penalties. clinic and has to ensure that “an adequate opportunity is made Pregnancy termination available for providing the woman with responsible information on methods of For residents authorised to reside, preventing unwanted pregnancies”333. pregnancy termination is free at the point of delivery under the Act on Long-term Healthcare329. For women who are 12 to 16 days pregnant, there is no waiting period. After 16 days and up to 13 weeks, there is a “cooling off period” of five days between the first consultation and the termination (as 330 http://wetten.overheid.nl/BWBR0003396/geldig heidsdatum_22-04-2015 326 331 International Planned Parenthood http://www.independer.nl/zorgverzekering/info/ Federation (IPPF) European Network, Abortion eigen-risico.aspx Legislation in Europe, Belgium, 2012, 327 http://www.ippfen.org/sites/default/files/Final_A http://www.rivm.nl/Onderwerpen/R/Rijksvaccin bortion%20legislation_September2012.pdf atieprogramma/De_inenting/Vaccinatieschema 332 328 http://www.rijksoverheid.nl/onderwerpen/leven http://www.rijksoverheid.nl/onderwerpen/zorgv seinde-en-euthanasie/late- erzekering/vraag-en-antwoord/wat-gebeurt-er- zwangerschapsafbreking-en- als-ik-niet-verzekerd-ben-voor-de- levensbeeindiging-bij-pasgeborenen zorgverzekering.html 333 The Termination of Pregnancy Act of 1 May 329 1981, Article 5(2a), http://www.rijksoverheid.nl/onderwerpen/zorg- http://wetten.overheid.nl/BWBR0003396/geldig in-zorginstelling/wet-langdurige-zorg-wlz heidsdatum_21-05-2015

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Access to healthcare for Pregnant asylum seekers and migrants refugees Pregnant asylum seekers and Asylum seekers, refugees and refugees have access to antenatal, persons eligible for subsidiary delivery and postnatal healthcare free protection at the point of delivery. Because of As authorised residents, recognised their specific vulnerabilities, those refugees and people who have women are entitled to more intensive obtained subsidiary protection have antenatal care (with more the same duties and rights as Dutch consultations). They are also entitled citizens. Asylum seekers access to access to pregnancy termination services free of charge. However, healthcare through a parallel scheme of primary care contracting, organised asylum seekers and refugees aged 21 and over have to pay for by Menzis, a non-profit insurance 337 company commissioned by the Central contraceptives themselves . Agency for the Reception of Asylum Children of asylum seekers Seekers (Centraal Orgaan opvang asielzoekers – COA). On the one All children can access free hand, this means that they can only vaccination at preventive frontline turn to GPs, physiotherapists, dentists, infant consultations (0-4 years), hospitals and pharmacies that are including children of asylum seekers. contracted. On the other hand, no out- For other care (including vaccinations of-pocket payment at all (not even a after the age of 4), they can only franchise) is required334. access care under the same specific scheme for asylum seekers as their As for Dutch residents, GPs are the parents. gatekeepers of access to other healthcare services. The basket of Undocumented migrants care is similar to that of the basic Undocumented migrants cannot take package for authorised residents (but, out health insurance338. They have a for example, dental care for adults is right to emergency care, and also accessible in case of pain or 335 “medically necessary care” (including chewing problems ). Upon entry, all antenatal and delivery care), as well asylum seekers undergo compulsory as care needed in “situations that TB screening. Asylum seekers coming would jeopardise public health”. In from high-risk countries are offered 2007, an independent commission of voluntary follow-up screening for a 336 medical (and social and legal) experts, period of two years . clearly defined “medically necessary

334 http://www.rzasielzoekers.nl/home/zorg- 337 S. Goosen, “Induced abortions and voor-asielzoekers.html teenage births among asylum seekers in the 335 Netherlands: analysis of national surveillance http://www.rzasielzoekers.nl/dynamic/media/28 data”, Journal of Epidemiology and Community /documents/rzaenbijlagen/Bijlage_5_noodhulpl Health, 2009, ijst_2015.pdf http://www.ggdghorkennisnet.nl/?file=1204&m 336 =1310635532&action=file.download http://www.rzasielzoekers.nl/dynamic/media/28 338 The Linkage Act of 26 March 1998, /documents/overige_documenten/2012_factsh http://wetten.overheid.nl/BWBR0009511/geldig eet_Menzis_HR.pdf heidsdatum_02-06-2015

 Page 82 NETHERLANDS care”339: doctors must provide undocumented341, although the adequate and appropriate care by language used is rather following the same guidelines, stigmatising342. The barriers to protocols and code of conduct that healthcare for undocumented people medical and academic professional were also confirmed by the National organisations adhere to in care for any Ombudsman in 2013343. other patient. Continuity of medical care should not be affected by Before 2014, contracted pharmacies uncertainty about the duration of the could recover between 80% and 100% patient’s stay in the Netherlands. of all the costs for undocumented Doctors and healthcare institutions migrants who were unable to pay. should focus primarily on the medical However, since January 2014, a €5 and healthcare-related aspects and not payment for every pharmaceutical on the financial aspects and funding prescription has been imposed. issues. Several support organisations paid the €5 for those who needed a lot of According to the Dutch authorities340, medication. As a result of their undocumented migrants are expected advocacy work, some municipalities to pay for treatment themselves, agreed to start an emergency fund, to unless it is proven that they have compensate the support organisations difficulty in paying. In that case, GPs which had covered the costs. For can recover 80% of the cost of a instance, Amsterdam signed a consultation for an undocumented covenant with pharmacies and support patient (the full cost being €27.19 for a organisations (including Doctors of the short consultation and €54.38 for a World) to manage this fund (in 2015) consultation that takes longer than 10 for patients who cannot pay. However, minutes) from the healthcare various hurdles remain in order for authorities. In the case of secondary undocumented migrants to benefit care, medical costs are only from such a fund. Consequently, MdM reimbursed for the 31 hospitals which is confronted with many patients for entered into an agreement with the whom even €5 is too much. healthcare authorities. In July 2014, 132 municipalities still In practice, there are many barriers remained without a contracted (e.g. GPs who refuse patients because pharmacy (including a number of they refuse to use the reimbursement medium-sized cities). scheme or because the patient cannot pay the remaining 20% of the consultation fee, lacking knowledge of 341 the reimbursement scheme etc.). In 2014, the authorities drafted a short http://www.zorginstituutnederland.nl/binaries/c ontent/documents/zinl- document to help healthcare www/documenten/rubrieken/verzekering/onver professionals determine who is zekerbare-vreemdelingen/1307-hoe-stel-ik- vast-dat-iemand-illegaal-in-nederland- verblijft/Hoe+stel+ik+vast+dat+iemand+illegaal +in+Nederland+verblijft.pdf 342 339 http://picum.org/picum.org/uploads/file_/Leaflet http://www.pharos.nl/documents/doc/webshop/ _NL_forPrinting_7Nov.2014.pdf arts_en_vreemdeling-rapport.pdf 343 Medische zorg vreemdelingen. Over 340 toegang en continuïteit van medische zorg http://www.zorginstituutnederland.nl/verzekerin voor asielzoekers en uitgeprocedeerde g/onverzekerbare+vreemdelingen asielzoekers

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In 2014, the European Committee of reminders at home, and are followed Social Rights ruled that the Dutch by debt collectors contracted by government should ensure the healthcare providers. provision of the necessary food, water, shelter and clothing to adult migrants Pregnant women can obtain a in an irregular situation and to asylum postponement of their departure from seekers whose applications for the Netherlands under Article 64 of the 344 protection have been rejected . The Aliens Act (see below) due to being Dutch Association of Municipalities unfit to travel (six weeks before and six (Vereniging Nederlandse Gemeenten) weeks after giving birth). During this has taken the same view concerning period, women have access to rejected asylum seekers345. At the time healthcare under the same scheme as this report was drafted (April 2015), the pregnant asylum seekers. government proposed making access Unlike maternity care, contraception to food, water and shelter accessible in and pregnancy termination have to be some cities, but only provided that the fully paid for by undocumented rejected asylum seekers would commit women. to returning to their country of origin. Most Dutch municipalities are strongly Children of undocumented migrants opposed and declared that they will keep their emergency shelters for ex- All children can access free asylum seekers open. vaccination at preventive frontline infant consultations (0-4 years), Undocumented pregnant women including children of undocumented parents. For curative care, and for They have access to antenatal, vaccinations after the age of 4, the delivery and postnatal care, but this children of undocumented migrants access is not free at the point of use. face the same barriers to care as their Undocumented migrants are expected parents. to pay for treatment themselves, unless it is proved that they cannot EU citizens pay. In the case of pregnancy and delivery, authorities can decide to In accordance with Directive reimburse contracted hospitals and 2004/38/CE, EU citizens are pharmacies up to 100% of the unpaid considered as “undocumented” after bills. However, in practice, three months of stay in the undocumented women are often urged Netherlands without health coverage to pay straight away in cash, and sufficient resources. Unlike in persuaded to sign up for payment by Belgium or in France, the care scheme instalments or receive a bill and for undocumented third-country nationals is not applicable to EU citizens without authorisation to reside.

344 If the latter do not have a European EUROPEAN COMMITTEE OF SOCIAL Health Insurance Card (EHIC), they RIGHTS, Conference of European Churches only have free access to emergency (CEC) v the Netherlands, 1 July 2014, 346 http://www.coe.int/t/dghl/monitoring/socialchart care . There are no specific legal er/Complaints/CC90Merits_en.pdf 345 https://www.vng.nl/onderwerpenindex/integrati 346 e-en- http://www.pharos.nl/documents/doc/pharos_v asiel/vreemdelingenzaken/nieuws/gemeenten- erslag_expertmeeting_gezondheid_en_zorgge willen-uitgeprocedeerde-asielzoekers-opvang- bruik_midden-en_oost-europese_migranten- kunnen-bieden 8juni2012.pdf

 Page 84 NETHERLANDS provisions for children of destitute EU medical treatment would lead to death, citizens. disability or another form of serious psychological or physical damage Unaccompanied minors within three months” (Article B8/9.1.3 352 Unaccompanied children seeking of the Aliens Circular 2000 ). As this asylum have access to healthcare suspension of expulsion is only services on the same basis as adult applicable in emergencies, it is usually asylum seekers. They receive extra granted for six months. However, the assistance in separate reception text does state that a postponed facilities347. If their application is departure can be granted for a rejected, they keep their right to live in maximum of one year. the asylum reception centres, to As explained above, pregnant women benefit from healthcare services and can be granted a postponed departure their right to education until departure due to being unfit to travel six weeks (Article 6 of the Measures regarding before and six weeks after giving birth. asylum seekers and other categories In case of pregnancy, the leave to of foreign nationals348). Unethical remain is automatically granted. No medical examination methods (X-rays proof of identity is needed to start the of the wrist and collarbone) are used in procedure: a declaration by a order to determine minors’ age349. gynaecologist or obstetrician and a filled out request form are sufficient. Protection of seriously ill During this period, women have foreign nationals access to healthcare under the same scheme as pregnant asylum seekers. Postponed departure from the Netherlands due to medical People who have been admitted emergencies involuntarily to a psychiatric hospital are automatically granted a postponed According to Article 64 of the Aliens departure for the period of the Act 2000350, in conjunction with Article hospitalisation for a maximum of six 3.46 of the Aliens Decree 2000351, the months. After six months the situation expulsion of undocumented migrants is reassessed and if the person is still can be suspended as long as their (or hospitalised, the postponed departure a family member’s) state of health will be extended for six months. would make it “inadvisable” for them to travel. This means that “termination of Residence permit for medical treatment According to Article 14 of the Aliens 347 http://www.coa.nl/nl/asielzoekers/wonen-op- Act 2000353 in conjunction with Article een-azc/kind-in-de-opvang 354 348 3.4 (1.o) of the Aliens Decree , a http://wetten.overheid.nl/BWBR0017959/geldig heidsdatum_22-04-2015#HoofdstukIII_Artikel6 349 http://www.vluchtelingenwerk.nl/feiten- cijfers/alleenstaande-minderjarigen 352 350 http://wetten.overheid.nl/BWBR0012289/B8/9/ http://wetten.overheid.nl/BWBR0011823/Hoofd 91/913/Tekst/geldigheidsdatum_27-04-2015 stuk6/Afdeling2/Artikel64/geldigheidsdatum_27 353 -04-2015 http://wetten.overheid.nl/BWBR0011823/Hoofd 351 stuk3/Afdeling3/Paragraaf1/Artikel14/geldighei http://wetten.overheid.nl/BWBR0011825/Hoofd dsdatum_23-04-2015 stuk3/Afdeling2/Paragraaf1/Subparagraaf5/Arti 354 kel346/geldigheidsdatum_27-04-2015 http://wetten.overheid.nl/BWBR0011825/Hoofd

 Page 85 NETHERLANDS temporary residence permit may be emergency, and whether the country of granted if medical treatment is needed origin offers the necessary medical in the Netherlands as the only country treatment (no mention is made of in which the special treatment can take verification that there is effective place355. This permit is granted for a access). According to the Platform for maximum period of one year, and in International Cooperation on exceptional cases for five years. Undocumented Migrants (PICUM) in Migrants with this residence permit are 2009, the country of origin information not allowed to work. Patients must is primarily received from International prove that they can cover their living SOS and from specially appointed and treatment costs (e.g. via their own doctors who are working in the insurance) during their residence. countries of origin358. When MdM has Furthermore, a precondition to medical teams in the concerned obtaining this temporary residence countries, they can often provide permit is to have obtained advance evidence about non access to care, authorisation to enter the given to the lawyers to help the Netherlands356. seriously ill migrant.

Residence permit for medical Although, in theory, seriously ill treatment after one year of Article undocumented migrants have a legal 64 right to await the decision on their request for a residence permit on After one year of postponed departure medical grounds in a reception facility due to a medical emergency under 359 for asylum seekers , this is often not Article 64, patients can file for a the case. residence permit for medical treatment. For this procedure, previous In 2013, the National Ombudsman360 authorisation to enter the Netherlands condemned the many barriers to is not required. accessing the procedure and effective protection: the need for formal proof of Once the application357 process is identity and medical declarations from completed with the Immigration and all healthcare providers involved Naturalisation Service (IND), the State issued within the last six weeks, makes Medical Service (BMA) issues an the application process particularly opinion determining whether there is a difficult. Furthermore, being allowed to medical emergency, whether the stay in a reception facility while the applicant is unable to travel due to this application is processed is only possible if no appeal with the Council of State has been lodged against a stuk3/Afdeling2/Paragraaf1/Subparagraaf1/Arti kel34/geldigheidsdatum_23-04-2015 355 Platform for International Cooperation on Undocumented Migrants (PICUM), Undocumented and seriously ill: Residence 358 Op. cit. note 355 permits for medical reasons in Europe, 359 Brussels, 2009, https://www.ind.nl/EN/Documents/2009%20EA http://picum.org/picum.org/uploads/publication/ UT%20Motie-Spekman.pdf Undocumented_and_Seriously_Ill_Report_Pic 360 Letter from the National Ombudsman to the um.pdf Secretary of State for Security and Justice, 4 September 2013, 356 http://www.inlia.nl/uploads/File/Brief%20aan% http://www.stichtinglos.nl/content/verblijfsvergu 20staats%20Teeven%204%20sep%202013% nning-medische-behandeling 20zorgen%20over%20motie_spekman%20opv 357 https://ind.nl/documents/7050.pdf ang%20voor%20zieke%20asielzoekers.pdf

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NETHERLANDS negative decision on a request for Prevention and treatment of asylum. infectious diseases 361 In a new report from March 2015 , HIV and hepatitis screening and the Ombudsman also holds a critical treatments are included in the basic view regarding the assessment of the package of the compulsory health BMA about the accessibility and insurance363. Therefore, every availability of care in the country of authorised resident in the Netherlands origin: the sources of the information is entitled to be fully reimbursed by used about the country of origin remain their insurance company for costs anonymous. This makes it impossible related to HIV, hepatitis and STI to determine whether the person who screening, treatment and care collects the information is qualified and (provided that the individual does not uses objectively verifiable information- have any outstanding “own risk” costs gathering methodologies and for what to pay, in which case these costs will level of remuneration, etc. As a result, be borne by the individual). Treatment the Ombudsman raises serious for these diseases is certainly part of questions about the quality of the data the “medically necessary care” to used. The Ombudsman recommended which undocumented third-country that the BMA should take a more nationals are entitled, even if many critical attitude towards the quality of barriers remain in practice (see the research, and that the IND should above). Destitute EU citizens (with no be more critical about BMA decisions financial resources or health coverage) as well. cannot access testing or treatment. The statistics given by the Dutch HIV, hepatitis and STI screening can Secretary of State for Security and be done at a GP’s office. Furthermore, Justice for the period from 1 January a national “complementary sexual 2010 to 31 March 2013 reveal that, of healthcare subsidies” system allows the 670 requests for protection, 420 municipal health services to offer were denied due to the anonymous and free-of-charge STI incompleteness of the application, 200 screening to most at-risk populations in requests were denied because access STI polyclinics. These populations are to healthcare was deemed sufficient in broadly defined: besides men having the country of origin and 40 requests sex with other men, sex workers and were approved (half of these because their clients, and people from a region the BMA did not respond in a timely where an STI is endemic, it also 362 manner) . includes anyone who has had more than three sexual partners in the last six months, anyone whose partner is considered at risk, patients who show STI symptoms and anyone under 25364. However, in the future, the

361 https://www.nationaleombudsman.nl/uploads/r apport/Rapport%202015- 053%20BMA%20en%20IND%20webversie.pdf 363 362 Letter from the Secretary of State to the https://www.soaaids.nl/nl/professionals/interve Dutch National Parliament, 27 May 2013, nties/structurele-interventies/toegang-soa-en- https://www.nationaleombudsman.nl/uploads/r hiv-zorg apport/Rapport%202015- 364 053%20BMA%20en%20IND%20webversie.pdf https://www.soaaids.nl/nl/professionals/interve

 Page 87 NETHERLANDS number of groups who can access these services could be restricted365.

nties/structurele-interventies/aanvullende- seksuele-gezondheidszorg 365 http://www.ggdghorkennisnet.nl/?file=13972& m=1375704358&action=file.download

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Accessing Spain healthcare system SPAIN after 2012 Royal-Decree General Health Law No. 14/1986 of 25 National Health System April 1986370 states that “every Spanish citizen, as well as foreign Constitutional basis nationals who have established their The Spanish Constitution of 1978 residence in the country, are entitled to recognises in Article 43 the “right to the protection of their health and to health protection”366 and healthcare for healthcare”. all citizens. It also claims that “it is incumbent upon the public authorities Access to care within the Spanish to organise and watch over public National Health System is regulated by Article 3 of Law 16/2003 of 28 May health by means of preventive 371 measures and the necessary benefits 2003 on the cohesion and quality of and services. The law shall establish the National Health System. the rights and duties of all in this 367 As part of its austerity measures, the respect” . Spanish parliament adopted Royal Decree-Law 16/2012 on 20 April 2012 Organisation and funding of “on urgent measures to ensure Spanish healthcare system sustainability of the national health The Spanish healthcare system is system and to improve the quality and based on solidarity. It aims to safety of its services”, which came into redistribute income amongst Spanish force on 1 September 2012. citizens368. Indeed, all citizens Article 1 of Royal Decree-Law contribute according to their incomes 372 and receive healthcare services 16/2012 (which came into force on 1 according to their health needs. September 2012) modifies Article 3 of Law 16/2003373 and Article 12 of The National Health System comprises Organic Law 4/2000374. According to the public healthcare administration of the new provisions, only individuals in both the Central Government the following situations have the right Administration and the autonomous to be covered by the National Health communities (AC), working in System (Article 3, Section 2 and 4 of coordination to cover all the healthcare Law 16/2003375): duties and benefits for which the public authorities are legally responsible369.  workers, retired people and beneficiaries of social security

370 Law of 25 April 1986, http://www.boe.es/buscar/doc.php?id=BOE-A- 1986-10499 371 Law of 28 May 2003, 366 of 1978, http://www.boe.es/diario_boe/txt.php?id=BOE- https://www.essex.ac.uk/armedcon/world/euro A-2003-10715 pe/western_europe/spain/SpainConstitution.pd 372 Royal Decree-Law of 20 April 2012, f http://www.boe.es/diario_boe/txt.php?id=BOE- 367 Ibid. A-2012-5403 368 Health Information Institute, National Health 373 Op. cit. note 371 374 System of Spain, Madrid, 2010, Organic Law of 11 January 2000, http://www.msssi.gob.es/organizacion/sns/doc http://www.boe.es/buscar/act.php?id=BOE-A- s/sns2010/Main.pdf 2000-544 369 Ibid. 375 Op cit. note 371

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services (e.g. unemployment required documents issued by the benefits); INSS, individuals may apply for the  people who have “exhausted” IHC at any health centre. their right to unemployment benefits and do not benefit from All IHC holders can benefit from all any other allowances; healthcare levels, primary and  spouses, dependent ex- specialist care. spouses, descendants or Primary healthcare makes basic dependants under 26 years old healthcare services available from any (or older in the case of people place of residence. The main facilities with disabilities categorised as are the healthcare centres, staffed by equal to or over 65%) of an multidisciplinary teams comprising insured person. general practitioners, paediatricians,

nurses and administrative staff and, in Access to public health services is some cases, social workers, midwives obtained through the Individual and physiotherapists. Since primary Healthcare Card (IHC) issued by each healthcare services are located within health service. This is the document the community, they also deal with which identifies every citizen or health promotion and disease resident as a healthcare user prevention. throughout the National Health System. This Individual Health Card A patient with health coverage does was (before 2012) obtained under not have to pay doctors’ fees in three conditions: the person had to be advance. However, each patient has to registered with the local municipality, pay a part of the costs of medicines378 provide a valid identity document and 376 which are included in the catalogue of provide proof of residence in the AC . medicines covered by the social security system379 (others are not Since the Royal Decree-Law covered)380. In the latter case, the 1192/2012 regulating insured and patient must pay for the treatment in its beneficiary status for the purposes of entirety. healthcare in Spain charged to public funds through the National Health 377 Specialist care is provided in System , the requirements must be specialist care centres and hospitals in met which are imposed by law to be the form of outpatient and inpatient “insured” or a “beneficiary” – a care. Patients who receive specialist condition that must be officially care and treatment are expected to be recognised by the National Institute of referred back to their primary Social Security (INSS). Then, with the

378 Op. cit. note 372; 376 Health For Undocumented Migrants and http://www.boe.es/diario_boe/txt.php?id=BOE- Asylum seekers (HUMA) Network, Accès aux A-2012-5403; soins des personnes sans autorisation de http://www.ocu.org/salud/derechos- séjour et des demandeurs d’asile dans 10 paciente/noticias/reforma-sanitaria-copago pays de l’UE – Législation et Pratique, 2009, 379 There are more than 15 000 medicines http://www.aedh.eu/plugins/fckeditor/userfiles/fi covered, le/Asile%20et%20immigration/Legislation_et_p http://www.msssi.gob.es/profesionales/nomenc ratique_rapport_HUMA_FR.pdf lator.do 377 Royal Decree of 3 August 2012, 380 List of medicines which have been excluded http://www.seg- in 2012, social.es/Internet_1/Normativa/169476 http://www.msssi.gob.es/profesionales/farmaci a/pdf/BOEA201210952.pdf

 Page 90 SPAIN healthcare doctor who, based on the These provisions mean that the IHC patient’s full medical history, including can now only be obtained on the the medical notes issued by the grounds of working status (indeed, specialist, assumes responsibility for except for dependants, only ex- any necessary follow-up treatment and workers who have worked long enough care. can benefit from social security benefits). The “residence” criterion is Reform ending universal access to no longer sufficient to be eligible for care the National Health System. Before April 2012, the Law 16/2003 However, according to Royal Decree considered as holders of “the right to 1192/2012, Spanish citizens, EU-EEA- health protection and healthcare”: Swiss citizens and third-country  all Spanish citizens and foreign nationals who hold a Spanish nationals who are on Spanish residence permit but who do not territory within the conditions belong to one of the categories provided in [old] Article 12 of mentioned above can be considered Organic Law No. 4/2000; as “insured” if their annual income  does not exceed €100,000 and if they EU citizens with health 382 coverage and sufficient do not have health coverage . In this resources [who have rights case, they have to register with their derived from European municipality in order to obtain their legislation]; IHC, under the same conditions as  nationals of non-EU countries before the reform. [who have rights derived from Finally, patients who cannot claim different international treaties]. “insured” status (as a consequence of

§Section 2-4 of Article 3 of Law In this respect, Spain was the only 16/2003 mentioned above) can only country with real access to care for all access healthcare services if they pay people residing in the country for it themselves or if they are eligible whatever their financial resources or for a “special provision”. Furthermore, legal status. the services included in this special With this Royal-Decree, access to care provision (which, in reality, is the same is considerably reduced. This reform as private insurance) are limited to the radically changed Spanish health “basic package of services” of the coverage, leaving millions of National Health System, meaning that undocumented migrants without health expenses such as non-urgent medical insurance, among whom EU nationals transportation, drugs or external staying more than three months prosthesis (e.g. a wheelchair) are not without sufficient resources and included in the package. However, without health coverage. This measure emergency transportation is included abandoned large sections of the in the “basic package” (Article 8bis of population unable to afford private Law 16/2003). health insurance381.

381 Europe Public Health Alliance (EPHA), does not benefit EPHA Press Release: Spain on brink of failing anybody, Brussels, 2012, its most vulnerable via new health law - A law http://www.epha.org/a/5161 bringing to an end decades-long free and 382 Op. cit. note 372

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The change in the law motivated six MdM ES have documented at least AC to appeal to the Constitutional “2,000 people who could not access Court, alleging a breach of universality healthcare because of a lack of proper as a principle. The appeals were also documentation, conflicts in the submitted on the grounds of interpretation of the Royal Decree and, procedural issues (e.g. the for some, discrimination or racism”. Government had not justified the “extraordinary and urgent necessity” The consequences of the reform may required to use legal terms of the have real, dangerous effects on the Royal Decree), as well as a breach of population’s health, “specifically regional competences (the concerning infectious diseases like management of healthcare is an issue tuberculosis or HIV-infected patients, of regional domain). These processes in addition to endangering access to are still pending a verdict. care for those mentally ill, addicted to drugs or vulnerable groups like The European Committee of Social homeless individuals”385. Rights stated in November 2014 that “the economic crisis cannot serve as a According to data from the Federation pretext for a restriction or denial of of Associations Defending Public access to healthcare that affects the Health (Federacion de Asociaciones very substance of the right of access to en Defensa de la Sanidad Publica – healthcare”, meaning that states have FADSP), the healthcare co-payment the obligation to provide assistance to established by the Royal Decree has citizens regardless of their residency had a severe impact on individuals status383. with low incomes, such as pensioners: 17% of pensioners have been unable Consequences of the 2012 health to continue a course of treatment due reform in Spain to high and increasing costs. Royal Decree 16/2012, adopted on 20 An article published by The Lancet386 April 2012, establishes in Spain a concludes that austerity measures in health system close to that of Spain affect children in particular, with insurance and therefore far from the nearly 30% being at risk of poverty or idea of a system of universal access to social exclusion387. healthcare384. It constitutes a structural transformation MdM ES report situations in which people are asked, before they receive any kind of treatment, to sign a commitment to pay by the emergency care services. They receive a bill after 383 EUROPEAN SOCIAL CHARTER being treated and have to apply for it to 388 European Committee of Social Rights be annulled . Conclusions XX-2 (ESPAGNE) Articles 3, 11, 12, 13 and 14 of the 1961 Charter, November 2014, http://www.coe.int/t/dghl/monitoring/socialchart er/Conclusions/State/SpainXX2_en.pdf 385 H. Legido-Quigley, “Erosion of universal 384 Doctors of the World – Médecins du Monde health coverage in Spain”, The Lancet, 2013. ES, Dos años de reforma sanitaria : más vidas 386 http://www.lamarea.com/2013/12/16/un- humanas en riesgo, April 2014, articulo-en-lancet-alerta-sobre-las-posibles- http://www.medicosdelmundo.org/index.php/m consecuencias-de-la-exclusion-sanitaria-en- od.documentos/mem.descargar/fichero.docum espana/ entos_Impacto-Reforma-Sanitaria-Medicos- 387 Ibid. del-Mundo_3ec0bdf9%232E%23pdf 388 Op. cit. note 384

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Access to healthcare for By law, children of asylum seekers and migrants refugees have the same access to healthcare as the children of nationals and authorised residents. This includes Asylum seekers and refugees vaccinations. Access to healthcare services for asylum seekers is regulated at national Undocumented migrants level by Articles 16, §2 and 18§1 of 389 Before the adoption of Royal Decree Law 12/2009 as well as by the fourth 16/2012, access to the Spanish additional provision of Royal Decree 390 National Health System was universal 1192/2012 . They are entitled to and free of charge for everyone, access healthcare on equal grounds to including undocumented migrants, on Spanish nationals and authorised production of the IHC. This could be residents with regard to coverage and obtained by registering with the local conditions. municipality and with proof of identity Refugees and those benefitting from and residence in most regions. subsidiary protection have access to Article 1 of Royal Decree-Law health services either as recipients of 392 16/2012 introduced a new Article social security benefits (workers, 3ter to Law 16/2003 which modified unemployed people or those the old system. dependent on an insured person) or as non-nationals holding a residence According to Article 3ter, 391 permit . As asylum seekers, they undocumented migrants are have the same access to healthcare as completely excluded from the nationals and authorised residents. healthcare scheme except that: In order to obtain their IHC, they have  children under 18 years old and to register with their municipality under pregnant women have access the same conditions as prior to the to primary and secondary care 2012 reform. (including antenatal, delivery and postnatal care and Pregnant asylum seekers and vaccination); refugees  emergency care should remain Pregnant women seeking asylum or freely accessible. with refugee status have the same access to healthcare as nationals and Undocumented migrants who are authorised residents. They have excluded from the healthcare scheme access to antenatal, delivery and may obtain personal health insurance postnatal care and pregnancy after at least one year of residence in termination. Spain, if they can afford to pay for it. This health insurance costs €60 per Children of asylum seekers and month for those below 65 years of age refugees and €157 per month for those aged 65 and above. Those who cannot afford to pay for 389 Law of 30 October 2009, personal health insurance and/or who http://www.boe.es/buscar/act.php?id=BOE-A- have been living in Spain for less than 2009-17242 390 Op. cit. note 377 391 Op. cit. note 389 392 Op. Cit. note 372

 Page 93 SPAIN one year do not have access to present their IHC and if they do not healthcare. have one, they are instructed to go to the emergency department398. It must be stressed that each AC in Spain can implement specific Furthermore, because of the poor level regulations regarding access to and of information around the reform, costs of healthcare for undocumented neither health providers nor migrants393. This situation creates undocumented pregnant women know administrative confusion and therefore that the 2012 Royal Decree allows inequality in access to healthcare them to have access to healthcare depending on where someone lives394. during their pregnancy. In addition, with regard to the Royal The consequences are serious, as Decree-Law, the European Committee women only seek medical attention of Social Rights has considered when their situation is already repressive the fact that undocumented concerning and complicated. It has migrants are excluded from the been reported that women who have 395 healthcare system . It also added been through a complicated birth have that times of economic crisis cannot be sometimes had to pay a bill of up to an excuse to deny or restricting the €3,300399. right to health to this vulnerable group396. The legal framework implemented by the Royal Decree is theoretically Undocumented pregnant women relatively adequate for emergency Article 1 of Royal Decree-Law 16/2012 situations and pregnancies. introducing the new Article 3ter states Nonetheless, in practice, women that foreign nationals who are neither struggle with the administration to get registered nor authorised to reside in the necessary IHC and therefore do Spain will be covered for antenatal, not have proper access to the medical delivery and postnatal care. care they need. However, since the 2012 reform, a number of Non-Governmental Organisations (NGOs) and media have reported how pregnant women often struggle to gain access to medical 398 397 Yosi - sanidad universal, Un año de care . Indeed, women are asked to exclusión sanitaria, un año de desobediencia, Campaña de desobediencia al Real Decreto- Ley 16/2012, 2013, 393 J. A. Pérez-Molina and F. Pulidob,“¿Cómo http://yosisanidaduniversal.net/media/blogs/ma está afectando la aplicación del nuevo marco teriales/DossierAniversarioRDL.pdf ; I. Benitez, legal sanitario a la asistencia de los “Health Care for Immigrants Crumbling in inmigrantes infectados por el VIH en situación Spain”, Inter Press Service News Agency, 24 irregular en Espana?”, Elsevier, 2014, May 2013, http://apps.elsevier.es/watermark/ctl_servlet?_f http://www.ipsnews.net/2013/05/health-care- =10&pident_articulo=0&pident_usuario=0&pco for-immigrants-crumbling-in-spain/ ntactid=&pident_revista=28&ty=0&accion=L&o 399 G. Sanchez, “Embarazadas, menores y rigen=zonadelectura&web=www.elsevier.es&la urgencias: los incumplimientos de una ley n=es&fichero=S0213-005X(14)00362- sanitaria discriminatoria”, eldiario.es, 31 0.pdf&eop=1&early=si August 2013, 394 Ibid. http://www.eldiario.es/desalambre/inmigracion- 395 Op. cit. note 384 sanidad_sin_papeles- 396 Op. cit. note 384 un_ano_sin_sanidad_universal_0_170433089. 397 Op. cit. note 384 html

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Children of undocumented migrants Decree 240/2007 of February 16, on Article 1 of Royal Decree-Law 16/2012 the entry, free movement and modifying Article 3ter of Law 16/2003 residence in Spain of citizens of the provides that “in any case, foreign Member States of the European Union nationals who are less than 18 years and other states parties to the old receive healthcare under the same agreement on the European Economic conditions as Spanish citizens”400. Area. This provision states clearly that all Royal Decree 240/2007 states that EU minors in Spain, whatever their citizens have the right to reside only if administrative status, will be granted they have health coverage and have access to all healthcare services, sufficient resources for themselves and under the same conditions as Spanish their family members not to become a minors i.e. free of charge. burden on the social assistance system of the host Member State. This Article 2 provides for the basic health provision excludes destitute EU services package which includes citizens. prevention services401. Indeed, the Spanish National Health System Thus, EU nationals who have lost their provides childhood immunisations, authorisation to reside in Spain must regardless of their nationality or status apply for a “special provision”, under in the country. the same conditions as undocumented migrants, to be readmitted into the To receive healthcare under the same Spanish National Health System. conditions as Spanish citizens, children of undocumented migrants In addition, in 2013, the European Commission raised concerns about the must have an IHC. The IHC can only 405 be obtained under three conditions: the issue of the EHIC . European patients who hold an EHIC have been person has to be registered at the local 406 municipality (Padron), provide a valid denied access to public healthcare . identity document and provide proof of Unaccompanied minors residence in the CA402. Article 3ter, subparagraph 4 of Law In practice, children in need of 16/2003 (introduced by Article 1 of healthcare go to health providers and Royal Decree-Law 16/2012) provides are asked for their IHC. If they do not that “in any case, foreign nationals who have one because of administrative are less than 18 years old receive 403 barriers and misinformation , they healthcare under the same conditions can be denied care and sent to the as Spanish citizens”. This provision emergency department in the states clearly that all minors, including 404 meantime . unaccompanied minors, have access to healthcare services, under the same EU citizens Directive 2004/38 was transposed into the Spanish legal framework by Royal 405 European Commission, European Health Insurance Card: Commission expresses 400 Op. cit. note 372 concerns about refusals by Spanish public 401 Op. cit. note 372 hospitals to recognise EHIC, Brussels, 30 May 402 Op. cit. note 372; Op. cit. note 143 2013, http://europa.eu/rapid/press-release_IP- 403 Op. cit. note 384 13-474_en.htm?locale=en 404 Op. cit. note 24 406 Ibid.

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SPAIN conditions as Spanish minors, i.e. free Treatment of infectious of charge. diseases Regarding more specifically The entry into force of Royal Decree unaccompanied minors “seeking 16/2012 in Spain in September 2012 asylum”, Article 47 of Law 12/2009 led to the exclusion of a large number points out that minors seeking of undocumented migrants from the international protection and who are National Healthcare System. “victims of any form of abuse [...] or victims of an armed conflict, receive all Concerning the specific medical healthcare as well as necessary attention to be given to undocumented specialized and psychological care”. migrants (excluding those under 18 years old and pregnant women), some Protection of seriously ill ACs in Spain have developed different foreign nationals laws or regulations in order to allow undocumented migrants access to Article 126 of Royal Decree 557/2011 healthcare408 and, in particular, of 20 April 2011 states that a regarding the treatment of infectious temporary residence permit on diseases409. humanitarian grounds can be granted to a foreign national under the In six ACs (Aragon, Canary Islands, following conditions: Catalonia, Extremadura, Galicia and Valencia) there are health  the individual must prove that programmes with specific rules for they are affected by a serious each them that enable access to 407 disease which occurred after primary and specialised healthcare for their arrival in the country (this undocumented migrants with no condition does not apply to resources (therefore it provides foreign children) and which healthcare to those people with needs specialist medical care; infectious diseases who have no IHC  there is no access to the and no resources); but this does not treatment in the country of guarantee free access to medicines.410 origin; The undocumented migrants must be  the absence of treatment or its registered in the locality and be able to interruption could lead to a prove their lack of resources411 and serious risk for the patient’s satisfy other administrative health or life. requirements.

In order to demonstrate the need, a There is a very small percentage of clinical report must be issued by the undocumented migrants who can competent medical authority. Article access these programmes. For those 130 of Royal Decree specifies that this people with a disease which is residence permit for humanitarian considered to be a risk to public health reasons is valid for a one-year period but who do not have an IHC and and is renewable as long as the cannot access this programme, the conditions are met. only alternative is to access healthcare

408 Op. cit. note 384 409 Op. cit. note 393 407 Mostly, it is very difficult for doctors to attest 410 Op. cit. note 384 if the disease occurred after or before arrival. 411 Op. cit. note 393

 Page 96 SPAIN but to be invoiced afterwards for the undocumented migrants who were not service (unless they have previously able to renew their IHC after the 2012 subscribed to a special agreement412). Royal Decree-Law can still access healthcare if they had one before the There is no information on specific reform413. provisions to guarantee access to treatment for those with infectious Andalusia – Asturias – Basque diseases. Country Cantabria These regions have contested the Royal Decree-Law, rejecting its Cantabria’s Programme of Social enforcement and developing Protection and Public Health enables mechanisms to ensure access to access to primary and specialised medical assistance for undocumented healthcare, as well as pharmaceutical migrants on the same terms as the rest benefits, for those migrants excluded of the population. The way this is by the Royal Decree Law, provided implemented varies from one case to they fulfil certain administrative another (e.g. the General Directorate conditions. of Health Services in Andalusia provides a temporary health card We have no information on any other (“Documento de reconocimiento alternatives to access to treatment for temporal del derecho a la Asistencia those people – as people with Sanitaria”)) and, in the case of, the infectious diseases – who cannot Basque Country requires a minimum benefit from the programme. period of registration in the local Navarre census. In March 2013, the Regional However, in general terms, they all Parliament passed a law (Ley Foral provide access to both primary and 8/2013), granting any resident in specialised healthcare, as well to Navarra – including undocumented pharmaceutical services, thus covering ones – the right to free and public care for people with infectious healthcare. This law has been diseases. appealed before the Constitutional Court. While the verdict is pending, the Madrid – Balearic Islands – section related to pharmaceutical Catalonia benefits has been temporarily In Madrid, the Balearic Islands and suspended. This means that all those Catalonia, the medical treatment of without health coverage cannot access infectious diseases such as HIV or free drugs and there is no information tuberculosis is considered as a matter about people with infectious diseases. of public health included in the scope of the 2012 Royal Decree414. Castile and Leon – Castile-La Nonetheless, in Madrid, this treatment Mancha – La Rioja is charged to the patient. In the With regards to Castile and Leon, Balearic Islands, the treatment is free Castile-La Mancha and La Rioja, no and the same is true for Catalonia415. specific regulation was implemented. Nonetheless, it is important to stress that in Castile and Leon, 413 Op. cit. note 393 414 Op. cit. note 393 412 Op. cit. note 384 415 Op. cit. note 393

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In February of 2014, the Ministry of Health, Social Services and Equality published a document entitled ‘Healthcare interventions in situations of public health risk’ (Intervención Sanitaria en situaciones de riesgo para la Salud Pública) approved by all the CAs416. This document does not specifically refer to undocumented migrants, but broadly to any person who does not benefit from the National Health System417. It establishes the right of everyone to healthcare (including preventive care, follow-up and monitoring) as soon as it is suspected that an individual has an infectious disease subject to epidemiological control and/or elimination at a national or international level and also for people with an infectious disease that requires long-term and chronic medical treatment418. Various diseases are included such as HIV, hepatitis B and C, tuberculosis419. Nevertheless, even though specific regulation may be established in Spain, 37% of doctors who are specialists in infectious diseases say that they have real difficulties “always or most of the time” in treating HIV positive patients who are undocumented migrants420.

416 Ministerio de Sanidad, servicios sociales e igualdad, Intervencion sanitaria en situaciones de riesgo para la salud publica, 18 de diciembre de 2013, http://www.msssi.gob.es/profesionales/saludP ublica/docs/IntervencionSanitariaRiesgoSP.pdf 417 Ibid. 418 Op. cit. note 416 419 Op. cit. note 416 420 http://www.chueca.com/articulo/la- exclusion-de-migrantes-de-la-sanidad-impide- el-control-de-las-enfermedades-infecciosas

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access to services on the basis of need, but also emphasises a vision of SWEDEN “equal health for all”424. National Health System It is organised into three levels: the national, regional and local. Constitutional basis Predominantly, these three entities handle the funding of the National The Constitution of the Kingdom of Health System (NHS). Government Sweden of 1974, in Article 2 (Chapter funding comes mainly from income 1), states that “Public power shall be taxes levied by county councils/regions exercised with respect for the equal and municipalities, and some national worth of all and the liberty and dignity and indirect tax revenues. As in the of the private person. The personal, UK, a small proportion of the economic and cultural welfare of the population has private health private person shall be fundamental insurance, which is usually paid by aims of public activity. In particular, it their employer. shall be incumbent upon the public institutions to secure the right to With primary responsibility for the health, employment, housing and delivery of good healthcare at the level education, and to promote social care of the county councils/regions and and social security […]”421. municipalities, the Swedish governance model is a mix of a In addition, Article 7 (Chapter 8) decentralised organisation of establishes that “with authority in law, healthcare services and centralised the Government may, without setting of standards, supervision and hindrance of the provisions of Article 3 compilation of performance information or 5, adopt, by means of a statutory on county/region-based services425. instrument, provisions relating to matters other than taxes, provided At the national level, the Ministry of such provisions relate to any of the Health and Social Affairs is responsible following matters: the protection of life, for overall healthcare policy. It health, or personal safety […]”422. establishes principles and guidelines for care and sets the political agenda Organisation and funding of for health and medical care. Swedish healthcare system At the regional and local levels, the The Swedish healthcare system has Health and Medical Services Act an explicit public commitment to specifies that the responsibility for ensure the health of all citizens. The ensuring that everyone living in Health and Medical Services Act Sweden has access to good 1982423 not only incorporated equal healthcare lies with the county councils and municipalities426. The Act is designed to give county councils and 421 Constitution of the Kingdom of Sweden of 1974, http://www.parliament.am/library/sahmanadrut yunner/Sweden.pdf 424 422 Ibid. http://www.euro.who.int/en/countries/sweden 423 The Health and Medical Service Act of 425 OECD Reviews of Health Care Quality, 1982, Sweden 2013 - Raising Standards, http://www.ilo.org/dyn/travail/docs/1643/health http://www.nsdm.no/filarkiv/File/Eksterne_rapp %20a%20nd%20medical%20insurance%20act orter/OECD_rapport_Sverige_1_.pdf .pdf 426 Op. cit. note 106

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SWEDEN municipalities considerable freedom individuals with health coverage. with regard to the organisation of their However, according to the Law on health services. Pharmaceutical Benefits429, the State subsidises the cost of certain The 21 county councils are responsible medicines. for the funding and provision of healthcare services, especially primary The Dental and Pharmaceutical care, through a national network of Benefits Agency (TLV) is a central about 1,200 public and private primary government agency which determines health centres covering the country427. whether a pharmaceutical product (or dental care procedure) should be The 209 municipalities are responsible subsidised by the State430. for long-term care for older people living at home, in care homes or There is a high-cost threshold that nursing homes, and for those with reduces patient costs for prescription disabilities or long-term mental health medicines. The high-cost threshold problems. applies for a 12-month period from the first purchase. It starts to apply after Accessing Sweden healthcare purchases amounting to around €115 system (1,100 SEK) for prescription medicines The 1982 Health and Medical Services during a 12-month period. The Act states that the health system must maximum cost for a patient for cover all nationals and authorised prescription medicines in the high-cost residents. threshold system is around €235 (2,100 SEK) during a 12-month period. The publicly financed health system covers: In practice, the patient pays the full price for their medicines up to around  public health and preventive €115 (1,100 SEK). Following this, a services; discount system comes into effect:  primary care, inpatient and outpatient specialised care;  between 1,101 SEK and 2,100  emergency care, inpatient and SEK, the patient pays 50% of outpatient prescription drugs; the cost of the medicine;  mental healthcare;  between 2,101 SEK and 3,900  rehabilitation services; SEK (around €415), the patient  disability support services; pays 25% of the cost of the  patient transport support medicine; services;  between 3,901 SEK and 5,400  home care and long-term care, SEK (around €575), the patient including nursing home care;  dental care for children and young people; and  with limited subsidies, adult dental care428.

The Swedish health system does not provide medicines free of charge to 429 Law on Pharmaceutical Benefits of 2002, http://www.riksdagen.se/sv/Dokument- Lagar/Lagar/Svenskforfattningssamling/Lag- 427 Op. cit. note 106 2002160-om-lakemedelsfo_sfs-2002-160/ 428 Op. cit. note 106 430 http://www.tlv.se/In-English/in-english/

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SWEDEN

pays 10% of the cost of the 431 Access to healthcare for medicine . migrants

If a patient has bought medicines on Asylum seekers and refugees prescription for 2,200 SEK within a 12- month period then they do not pay any According to the Law on Health and more for their medicines during the Medical Services for Asylum Seekers 434 remaining time in that period432. and Others , all asylum seekers are entitled to subsidised health and dental 435 For asylum seekers and care that “cannot be postponed” , undocumented migrants, the situation maternity care, pregnancy termination is slightly different but more and contraceptive advice. advantageous. According to The Swedish Migration Agency Regulation on care fees for foreign provides them with a personal card nationals staying in Sweden without (LMA card) which is valid for a certain the necessary permits, asylum seekers period (three, four or six and undocumented migrants only have months436).This card must be to pay a fee of a maximum of €5.20 437 433 presented when seeking care per prescribed drug . This applies to . medicines subsidised by the State. For any visit to a health centre or hospital, adult asylum seekers pay In addition, anyone with health around €5 for the visit or examination coverage who has a medical and around €5 when buying a consultation with a GP has to pay a fee prescribed medicine from the of €21 directly upfront or ask for a bill. pharmacy438. For medical transport they pay a maximum of €4.30439. Within a 12-month period after their According to the law regulating the first visit to a GP, an individual with reception of asylum seekers440, asylum health coverage never has to pay more than around €120. Indeed, after having paid €120, the patient can obtain a 434 Law on Health and Medical Services for card that gives them access to free Asylum Seekers and Others of 2008, healthcare until 12 months have http://www.riksdagen.se/sv/Dokument- passed since the first visit. Lagar/Lagar/Svenskforfattningssamling/Lag- 2008344-om-halso--och-s_sfs-2008-344/ 435 Ibid. 436 http://plus.rjl.se/info_files/infosida31671/imakor t.pdf 437 C. Björngren Cuadra, “Policies on Health Care for Undocumented Migrants in EU27, Country Report, Sweden”, Healthcare in NOWHERELAND improving services for undocumented migrants in the EU, 2010, http://files.nowhereland.info/692.pdf 431 http://www.tlv.se/In-English/medicines- 438 G. Abraha, “A Handbook for Asylum new/the-swedish-high-cost-threshold/how-it- Seekers in Sweden”, Asylum Reception in works/ Focus - A series from NTN-asylum & 432 Ibid. integration No. 5, 2007 433 Regulation on care fees for foreign http://www.temaasyl.se/Documents/NTG- nationals staying in Sweden without the dokument/A+Handbook+for+Asylum+Seekers necessary permits of 2013, +in+Sweden.pdf http://www.riksdagen.se/sv/Dokument- 439 Ibid. Lagar/Lagar/Svenskforfattningssamling/Forord 440 Law on the reception of asylum seekers ning-2013412-om-varda_sfs-2013-412/) and others of 1994,

 Page 101 SWEDEN seekers who are registered are entitled Children of asylum seekers and to assistance, including a daily refugees allowance. Children of asylum seekers have the If they have paid more than €43 for same access to medical and dental doctor’s appointments, medical care as children of nationals and transport and prescription drugs within authorised residents, even after their six months, asylum seekers can apply application for asylum has been for a special allowance; the Swedish rejected. Therefore, they have access Migration Agency can compensate to immunisation. 441 them for costs over €43 . The county This is regulated by the Law on Health administrative board receives payment and Medical Care for Asylum Seekers for medical examinations and medical and Others (2008:344). care from the Migration Board442. The county administrative board can, Undocumented migrants following an application, receive payment for special costly care443. Prior to the implementation of the Health and Medical Care for Certain Asylum seekers and refugees also Foreigners Residing in Sweden without have access to emergency care but Proper Documentation Act this is not free of charge. Each medical (2013:407)445 in July 2013, in contrast consultation in case of emergency to Swedish citizens and authorised costs around €40. According to the residents, undocumented migrants had Regulation on foreign nationals and to pay full fees for receiving care fees444, the caregiver should healthcare, even in cases of decide the cost for such care that is emergency. not mentioned in the regulation, and emergency care is not mentioned. Since July 2013, this law grants Therefore each county decides what undocumented migrants the same the cost for emergency care should be. access to healthcare as asylum In Stockholm, and many other seekers and refugees i.e. subsidised counties, the cost is around €43. healthcare “that cannot be postponed”. It includes medical examination and Pregnant asylum seekers and medicine covered by the refugees Pharmaceutical Benefits Act, dental care “that cannot be deferred”, Pregnant women seeking asylum have maternity care and pregnancy the right to receive maternity care termination, contraceptive counselling under the conditions detailed above. and sexual and reproductive care446. In They can have a pregnancy addition, the new reform stipulates that termination as well as receive county councils should be able to offer contraceptive advice services free of undocumented migrants the same charge. level of care that is available to

http://www.riksdagen.se/sv/Dokument- 445 Lagar/Lagar/Svenskforfattningssamling/Lag- http://www.1177.se/Dokument/Stockholms_lan 1994137-om-mottagande-a_sfs-1994-137/ /Regler_och_rattigheter/V%C3%A5rd%20f%C 441 Op. cit. note 438 3%B6r%20dig%20som%20befinner%20dig%2 442 Op. cit. note 438 0i%20Sverige%20utan%20tillst%C3%A5nd/Fo 443 Op. cit. note 438 lder%20A4_engelska.pdf 444 Op. cit. note 433 446 Ibid.

 Page 102 SWEDEN residents447. Similarly to asylum  medicines covered by the seekers, at least in theory, Pharmaceutical Benefits Act; undocumented migrants can also  disease control measures; apply for the compensation of costs  a health check-up (if the over €43. individual has not already received one) In February 2014, the National Board  disability aids (unless the of Health and Welfare (Socialstyrelsen) patient can get access to such came to the conclusion that the terms items otherwise) “that cannot be postponed” are “not  medical travel / transport in compatible with ethical principles of the connection with the care medical profession, not medically episode applicable in health and medical care  448 interpreter in connection with and risk jeopardizing patient safety” . the care.

In practice, this is how the National Since the July 2013 law came into Board of Health and Welfare defines force, MdM SE team has observed what care is included in the terms: difficult implementation. Medical staff  acute care and treatment lack information and understanding (emergency care); about the new law and often apply the  treatment of diseases and former system. Indeed, some public injuries where even a moderate hospitals claim payment for health delay can have serious costs. For instance, €45 for a GP consequences for the patient; consultation, whereas it should cost  care that can counteract a more around €5. serious medical condition; Moreover, many undocumented  care to avoid more migrants are still denied access to comprehensive care and healthcare. Of the undocumented treatment; migrants whom the organisation  care to reduce the use of more referred to public healthcare in the costly emergency treatment course of 2014, 19% (30 out of 162) measures; were at some point denied subsidised  psychiatric care; healthcare that they should have been  maternal health (antenatal, entitled to. delivery and postnatal care);  contraceptive advice; Undocumented pregnant women  termination of pregnancy; Undocumented pregnant women pay a patient fee of around €5 when they seek a medical consultation. The July 2013 Law states that undocumented 447 Platform for International Cooperation on pregnant women have the right to Undocumented Migrants (PICUM), obtain maternal healthcare free of Guaranteeing Access to Health Care for 449 Undocumented Migrants in Europe: What Role charge, including delivery care . Can Local and Regional Authorities Play?, Brussels, 2013, http://picum.org/picum.org/uploads/publication/ CoR%20Report%20Access%20to%20Healthc are%20EN_FR_IT_ES%202013.pdf 449 448 http://www.vardgivarguiden.se/Patientadministr http://www.socialstyrelsen.se/Lists/Artikelkatal ation/Ta-betalt/Asyl_Utan_tillstand/Personer- og/Attachments/19381/2014-2-28.pdf utan-tillstand/Artiklar/Patientavgifter/

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Regarding pregnancy termination450, 3a452, after three months, EU citizens the care related to the procedure is can lose their right to reside in Sweden free of charge. However, women have if they do not have health coverage to pay around €5 for the termination and sufficient resources. They are then itself, which is the same amount as a considered as undocumented. regular medical consultation. The July 2013 Law is not clear on Children of undocumented migrants whether destitute EU citizens who All children in Sweden have access to have lost the right to reside are free vaccination, according to a currently able to access healthcare on national vaccination programme. The the same basis as undocumented vaccination programme includes ten migrants (third-country nationals). vaccines: polio, diphtheria, rubella, The government bill 2012/13:109453 tetanus, pertussis, hepatitis B, merely stipulates that this is possible pneumococci, measles, mumps, and “only in a few cases”, without further HPV (girls only). The vaccination of precision. However, in December young children is performed at the 2014, the National Board of Health and health centre, while children at primary Welfare publicly announced that EU school are vaccinated by the school citizens should be considered as healthcare facilities. There is no undocumented (and have the same distinction made regarding vaccination access to care as asylum seekers and between children of undocumented third-country nationals). It then made a migrants (including children of new statement in April 2015 and undocumented EU citizens) and 451 reiterated the fact that EU citizens who children who are nationals . stay longer than three months may in In addition, according to the July 2013 certain cases have access to healthcare on the basis of the 2013 Law, minor children of undocumented 454 migrants have the same rights to law . medical and dental care as the In practice, they remain in the former children of Swedish nationals. system and have to pay full fees for receiving healthcare in most hospitals EU citizens and health centres. The EU directive 2004/38 transposed into the Aliens Act (2005:716), Chapter Unaccompanied minors Since the law came into force, asylum seekers, refugees and undocumented

452 Aliens Act of 2005, 450 Law on care fees for certain foreign http://www.government.se/content/1/c6/06/61/ nationals staying in Sweden without the 22/bfb61014.pdf necessary permits of 2013, 453 Government Bill on healthcare for people https://www.riksdagen.se/sv/Dokument- staying in Sweden without permission of 2013, Lagar/Lagar/Svenskforfattningssamling/Lag- http://www.riksdagen.se/sv/Dokument- 2013407-om-halso--och-s_sfs-2013- Lagar/Forslag/Propositioner-och- 407/?bet=2013:407 skrivelser/Halso--och-sjukvard-till- 451 perso_H003109/ http://www.socialstyrelsen.se/smittskydd/vacci 454 nation/barnvaccinationer/allmantprogram ; http://www.socialstyrelsen.se/vardochomsorgfo http://www.1177.se/Stockholm/Regler-och- rasylsokandemedflera/halso- rattigheter/Vard-for-dig-som-befinner-dig-i- ochsjukvardochtandvard/vilkenvardskaerbjuda Sverige-utan-tillstand/ s

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SWEDEN migrants have the same access to their situation, there are such healthcare. Thus, unaccompanied exceptionally distressing minors, regardless of their status, circumstances that they should be should have access to healthcare, in allowed to stay in Sweden. In making particular to vaccination. this assessment, particular attention should be paid to the foreign national’s The county councils are responsible health, their integration in Sweden and for providing the same level of health their situation in their country of origin. service, including healthcare, for Children may be granted residence children seeking asylum under the age permits under this section, even if the of 18 as for other children who are circumstances that come to light do not citizens or residents in Sweden, have the same seriousness and weight including child psychiatric and dental that is required for a permit for adults. care455. The National Board of Health and Welfare supervises the Section 9 specifies that “a residence municipalities’ reception of permit that is granted pursuant to unaccompanied children. The County Section 6 on ground of sickness shall administrative boards supervise the be for a limited time if the [foreign chief guardians who appoint guardians national’s illness] or need of care in for unaccompanied minors seeking Sweden is of a temporary nature”. asylum456. According to the 1949 law (Chapter 19), the chief guardian is In MdM SE’s experience, it is very elected by the city council457. They are difficult for seriously ill individuals to elected for a four-year period. obtain a residence permit. The patient must be more or less fatally ill to obtain Protection of seriously ill residency, and even in such cases the residency is often temporary. foreign nationals According to the Aliens Act (Chapter 5, Prevention and treatment of 458 Section 6) of 29 September 2005 , a infectious diseases residence permit on grounds of exceptionally distressing Infectious diseases are covered by the circumstances can be granted. Diseases Act (Smittskyddslagen459) Section 6 states that if a residence which states that testing and treatment permit cannot be awarded on other are free of charge for residents in grounds, it may be granted to a foreign Sweden and for those who are national if, on an overall assessment of covered by EU regulation 883/2004. Since the 2013 law which grants the

same access to healthcare for 455 U. Wernesjo, “Conditional Belonging undocumented migrants as asylum Listening to Unaccompanied Young Refugees’ seekers and refugees, undocumented Voices”, Digital Comprehensive Summaries of migrants also have access to free Uppsala Dissertations from the Faculty of testing and treatment free of charge. Social Sciences 93. Uppsala, 2014, http://www.diva- Diseases such as tuberculosis, HIV portal.org/smash/get/diva2:689776/FULLTEXT and hepatitis are covered by the law. 01.pdfto 456 Ibid. 457 The Children and Parents Code of 1949, http://www.riksdagen.se/sv/Dokument- 459 Diseases Act of 2004, Lagar/Lagar/Svenskforfattningssamling/Foraldr http://www.riksdagen.se/sv/Dokument- abalk-1949381_sfs-1949-381/#K19 Lagar/Ovriga-dokument/Ovrigt-dokument/_sfs- 458 Op. cit. note 452 2004-168/

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Destitute EU citizens are not mentioned in the law. According to the MdM SE team, even if the law does not officially include destitute EU citizens, it is free for them to get tested and to receive treatment.

 Page 106 SWITZERLAND

1996464. This law introduced a SWITZERLAND managed competition scheme across the country, with “universal” coverage National Health System in basic health insurance. Moreover, the LAMal expanded the package of Constitutional basis services previously covered by The Federal Constitution of the Swiss statutory health insurance and made this “basic package” compulsory Confederation, adopted on 18 April 465 1999, enshrines the right to health. across the Swiss confederation . Article 12 establishes that “persons in To facilitate government monitoring of need and unable to provide for health insurance companies, insurers themselves have the right to must register with the Federal Office of assistance and care, and to the Social Insurance (FOSI) in order to financial means required for a decent 460 offer the basic health insurance standard of living” . Article 41(1)a package466. Moreover, the Swiss and b states that, “the Confederation system being highly decentralised, the and the Cantons shall, as a 26 Swiss cantons are largely complement to personal responsibility responsible for the provision of and private initiative, endeavour to healthcare and insurance companies ensure that: (a) every person has (around 90 across the country) operate access to social security; (b) every primarily on a regional basis467. person has access to the healthcare that they require”461. With regard to the funding, there are three components for publicly financed Moreover, Article 117a1, relating to healthcare: basic medical care, states that, “within the limits of their respective powers,  mandatory health coverage; the Confederation and the cantons  direct financing by government shall ensure that everyone has access for healthcare providers (tax- to sufficient and high quality basic financed budgets spent by the medical care (…)”462. Confederation, cantons and municipalities; the largest In addition, Article 118 enshrines the portion of this spending is given protection of health, for which “the as cantonal subsidies to Confederation shall, within the limits of 463 hospitals providing inpatient its powers, take measures” . acute care); Organisation and funding of Swiss healthcare system The Swiss Federal Law on 464 Compulsory Health Care (LAMal) https://www.eda.admin.ch/missions/mission- entered into force on 1 January onu-omc-aele-geneva/en/mission- geneva/manual-regime-privileges-and- immunities/manual-insurance/manual- insurance.html 465 Civitas, Health care Systems: Switzerland, 460 Federal Constitution of the Swiss by Claire Daley and James Gubb, updated by Confederation of 1999 (last updated 18 May Emily Clarke (December 2011) and Elliot 2014), Bidgood (January 2013), http://www.admin.ch/ch/e/rs/1/101.en.pdf http://www.civitas.org.uk/nhs/download/switzerl 461 Ibid. and.pdf 462 Op. cit. note 460 466 Ibid. 463 Ibid. 467 Op. cit. note 464

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 social insurance contributions This proportional share is capped at from health-related coverage of €669 per adult and €334 per child470. accident insurance, old-age In other words, in addition to the insurance, disability insurance monthly premium, an adult who has and military insurance468. opted for a €286 franchise will pay a maximum of €955 (€286 + €669) per Accessing Switzerland healthcare year for medical treatment. The higher system the annual franchise, the less the The system is based on the monthly premium will be. compulsory health insurance for any The most destitute people therefore person residing in Switzerland for more often choose this option which creates than three months, as foreseen in serious difficulties if they become ill Article 3 (1) LAMal and in relation to (and can lead to them giving up Article 1(1) Health Insurance seeking care), as they cannot cover Ordinance (OAMal) of 27 June 1995 the resulting costs (they are not (OAMal/RS 832.102). Article 6 LAMal refunded until they reach the amount completes these provisions by of their franchise). explaining that the cantons are in charge of making sure that this In the event of non-payment of the obligation is respected and that “the monthly compulsory health insurance authority designated by the canton premiums, the individual receives a automatically affiliates any person, summons giving them 30 days to pay who is obliged to take out insurance if the premiums due. If the summons that person has not already done so”. remains unanswered, the insurer will initiate legal proceedings. After the The monthly premiums for health individual receives an order to pay, insurance are fixed per family member they have 30 days to pay the entire and independently of income, sum claimed, plus the legal expenses. depending on the region and the chosen insurance model. On average, While the former Article 64a LAMal compulsory health insurance (with provided that insurance funds could accident coverage) for an adult over suspend their services and/or the age of 26 costs €393 per month, reimbursements if people did not pay, €362 per month for young adults (18- the new Article 64a LAMal (which 25 years old) and €90 per month for came into force on 1 January 2012)471 children under the age of 18. modified this provision. Insurance Furthermore, the insured person must funds no longer have the right to pay an annual “franchise” which varies suspend healthcare reimbursements if between €286 and €2,390 for adults an individual fails to pay their (€0 to €574 for children) and must also premiums. contribute up to 10% (proportional share) of the cost of the services In this way, the canton assumes 85% provided469. of the debts claimed by the insurance fund. As soon as the individual pays all

468 Op. cit. note 106 470 469 In January 2015, the Swiss National Bank http://www.guidesocial.ch/fr/fiche/55/%23som_ (SNB) left the floor rate between the euro and 134251 the Swiss franc (CHF) ; € 1 is now between 1 471 Federal Law on health insurance of 1994, CHF and 1.05 CHF and while it traded at 1.20 http://www.admin.ch/opc/fr/classified- CHF before. compilation/19940073/index.html#a64a

 Page 108 SWITZERLAND or part of their debt to the insurance legal services to which they have a fund, the fund gives 50% of this right (principle of subsidiarity)475. amount back to the canton. Only if legal proceedings turn out to be It includes, notably, prevention impossible or do not result in payment, measures, personal assistance and and after written notification, can the material assistance depending on the insurer eventually terminate end the individual’s needs. Thus, social health insurance (Article 9, OAMal)472. assistance ensures basic medical care for those concerned, including the A partial reduction or full exemption coverage of the compulsory basic from monthly premiums is foreseen in health insurance476. Article 65(1) LAMal for people “on low incomes”. This is the responsibility of The healthcare services covered by the cantons which is why the granting the compulsory (basic) health of premium reductions differs from one insurance are indicated in Articles 24 canton to another. to 31 LAMal and detailed in the Federal Department of the Interior Paragraph 1a of this same article also (DFI) order of 29 September 1995 indicates that for low and middle-range regarding compulsory healthcare incomes, premiums for children and services in the event of illness or young adults (18-25-year-old students) disease477. The following services are are reduced by at least 50%. notably included: Article 115 of the Swiss Constitution,  examinations, treatments and completed by the Federal Act of 24 care dispensed in the form of June 1977 on jurisdiction in terms of outpatient care at the person’s assistance for persons in need home, in hospitals or in a (‘LAS’/RS 851.1)473 foresees that medical-social centre by “people in need are assisted by the doctors, chiropractors and canton of their domicile”. This ‘social individuals providing services assistance’ organised by the cantons prescribed by a doctor; is reserved for people who “cannot  antenatal and postnatal care; take care of themselves sufficiently or  terminations of pregnancy in time, by their own means” (Article 2 allowed by Article 119 of the LAS). Social assistance is granted if a Swiss Criminal Code478 (i.e. person in need cannot be looked after within the first three months or by their family474 or cannot claim other because it is necessary to “reduce or avoid the danger of serious harm to the physical integrity or state of profound

472 Op. cit. note 470 473 Federal Law on assistance of 1977, 475 http://www.admin.ch/opc/fr/classified- http://www.fr.ch/sasoc/fr/pub/aide_sociale/buts compilation/19770138/index.html#id-1 _aide_sociale.htm 474 W. Schmid and D. Maravic, “The new 476 http://csias.ch/ CSIAS standards relative to the obligation to 477 Healthcare Benefits Ordinance of 1995, provide care under the terms of family rights”, http://www.admin.ch/opc/fr/classified- The fiduciary Expert, 2009, compilation/19950275/index.html http://www.trex.ch/custom/trex/pdfarchiv/TREX 478 Swiss Criminal Code of 1937, _2009/Edition_4/Articles_specialises/Walter_S http://www.admin.ch/opc/fr/classified- chmid__Danie.pdf compilation/19370083/index.html#a119

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distress of the pregnant meaning of Articles 23-26 of the Swiss woman”); Civil Code”481.  preventive measures (mammography for some They can make a claim for premium reductions if they are “on a low women at risk, gynaecological 482 examinations, examinations of income” . They can also benefit from new-born and pre-school social assistance at the level provided by their canton, as foreseen in Articles children, basic vaccinations for 483 children and elderly people); 80-81 of the Asylum Act. This social  “rehabilitation” measures carried assistance covers basic medical care, out or prescribed by a doctor. including compulsory insurance (especially the amount remaining after Dental care is not included in this premium reductions and franchises). catalogue, except if it is caused by a According to the LAsi, asylum seekers serious and non-avoidable disease of who receive a negative asylum the masticatory system, by another decision or a rejection of their serious disease or its consequences or application still benefit from ordinary because it is necessary to treat a social assistance. serious disease or its consequences 479 (Article 31 LAMal) . Unless they In order to revise the LAsi484, three subscribe to additional health projects were launched to change insurance cover for dental care, measures applying to asylum seekers patients with basic health insurance and refugees. The first one, which have to pay for the full cost of dental concerned changes to the allocation of care which is very expensive in social assistance to asylum seekers, Switzerland. came into force on 1 February 2014. It includes, in particular, an amendment Access to healthcare for to Article 82(1) and 82(2). migrants Under this scheme, social assistance Asylum seekers and refugees is automatically withdrawn from individuals who receive a removal As Switzerland applies a global health decision with a fixed departure insurance scheme that is obligatory for deadline (Article 82(1)). Those who all people residing in Switzerland for receive a removal decision may only longer than three months, the scheme have access to emergency care on also includes asylum seekers and request (Article 82(2)). This barrier to 480 refugees . accessing care goes against the rights of asylum seekers appealing a Thus, asylum seekers and statutory decision i.e. who are still in the asylum refugees have to take out compulsory process. health insurance as they are “persons domiciled in Switzerland within the 481 Swiss Civil Code of 1907, http://www.admin.ch/opc/fr/classified- 479 Op. cit. note 473 compilation/19070042/index.html 480 V. Bilger and C. Hollomey, “Policies on 482 Health Care for Undocumented Migrants in https://www.geneve.ch/assurances/maladie/su Switzerland, Country Report”, Healthcare in bsides-assurance-maladie-2015.asp#a14 NOWHERELAND improving services for 483 Op. cit. note 473 undocumented migrants in the EU, 2011, 484 http://www.odae- http://chm.com/country_report_Switzerland.pdf romand.ch/spip.php?article244

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Pregnant asylum seekers and Thus, because they do not work refugees legally, they do not pay taxes, so they Under the Swiss health system, cannot have access to premium pregnant women should have access reductions. The canton of Neuchâtel to antenatal and postnatal care. asks for proof of domicile which is in Cantons are obliged to provide practice very difficult to obtain for accommodation to asylum seekers and someone who is hosted by friends or refugees, therefore pregnant women families and cannot therefore be have immediate access to social registered with the residents’ assistance and premium reductions registration office (le service de and thus they have access to antenatal contrôle des habitants). and postnatal care. They also have Undocumented migrants are not likely access to pregnancy termination to take the risk of being thrown out of through social workers who help them their homes to get this proof. Indeed, with the process. according to Article 116 of the law on foreign nationals486, individuals who Children of asylum seekers and host undocumented migrants can be refugees punished by a fine or imprisonment of up to one year. Children of asylum seekers and children of refugees have the same Other cantons accept a sworn access to healthcare as their parents. statement and in this case They have health coverage which undocumented migrants can easily includes vaccination if their parents are gain access to premium reductions. covered. Therefore, in practice, undocumented Undocumented migrants migrants try to obtain health coverage, As already mentioned, any person even if it is expensive. They spend residing in Switzerland must take out most of their wages on private health insurance within three months insurance contributions. They opt for of residence or birth, including the cheapest contributions of around undocumented migrants. €300). This choice involves having the highest franchise487, around €2,390 Only authorised residents (including per year. It means that they have to refugees, beneficiaries of subsidiary cover the first €2,390 prior to being protection and asylum seekers) benefit covered by health insurance. In from social assistance. Others can addition, they must contribute up to only exercise their right to “emergency 10% (proportional share) of the cost of assistance” under the terms of Article outpatient services. 12 of the Swiss Constitution485. Undocumented migrants also have a Although Article 65(1) LAMal states right to “emergency assistance” under that destitute undocumented migrants the terms of Article 12 of the Swiss can benefit from the same premium Constitution which foresees that reductions as destitute nationals, this is not possible in all cantons. Indeed, most cantons ask for proof of income 486 Federal Law on Foreigners of 2005, tax in order to grant access to premium https://www.admin.ch/opc/fr/classified- reductions. compilation/20020232/index.html 487 The franchise or deductible is the amount which has to be paid by the patient before the 485 Op. cit. note 460 insurance starts paying.

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“anyone in distress who cannot take they do not pay the franchise nor the care of himself has the right to aid and 10% proportional share. assistance and to an existence compliant with human dignity”. These Regarding pregnant women without aid and assistance provisions are free health coverage, they have to pay of charge. themselves. For instance, antenatal, delivery and postnatal care cost The assistance includes, as a around €5,500 for women without minimum, “accommodation in simple health coverage. housing (often collective), the supply of food products and hygiene items, However, mostly, non-governmental emergency medical and dental care, organisations work closely with as well as other vital services”. practitioners in public hospitals who Significant differences between provide free healthcare to cantons exist regarding the access undocumented pregnant women. In procedures and services covered by Chaux-de-Fonds, MdM CH guides this emergency assistance system and them to public hospitals which agree to some cantons are quite restrictive. In provide healthcare free of charge. any case, this assistance must be In case of emergency, practitioners specifically requested by the potential have to provide healthcare anyway, beneficiaries and does not always without asking whether patients have include affiliation to a health insurance health coverage. MdM CH teams fund. report that many undocumented In practice, undocumented migrants pregnant women who cannot pay for face many difficulties in respecting the health services leave the hospital obligation to take out health insurance without having paid and without a bill because of lack of financial means, for reimbursement. lack of knowledge of the system and Children of undocumented migrants fear of being reported. Insurers must maintain confidentiality with regard to Children of undocumented migrants third parties488 but in the event of the have the same access as their non-payment of premiums, the insurer parents. In principle, they may have initiates a debt-collecting procedure access to premium reductions which (Article 64a LAMal, see above), which cover the whole premium. However, in represents an additional risk of being practice, access to premium reductions discovered (see Article 84a(4) LAMal). is very complicated. Undocumented pregnant women Either their parents can afford private health coverage for them (the Every pregnant woman, and contributions are cheaper than for undocumented pregnant women who adults, around €90 per month), so can only afford the cheapest health children have access to vaccinations; insurance, is covered for termination of or they cannot pay contributions so pregnancy, antenatal care, delivery they have to pay all doctor’s fees. and postnatal care. They do not have to pay for maternal care; this means Mostly undocumented parents succeed in insuring their children.

488 Indeed, children’s coverage is Federal Law on the general section of compulsory if their parents want to social insurance of 2000, Article 33, 84, 92,c http://www.admin.ch/opc/fr/classified- register them for school. compilation/20002163/index.html#a33

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EU citizens Unaccompanied minors EU citizens, like anyone who resides in In certain cantons, unaccompanied Switzerland, are obliged to take out minors should be taken into health insurance within three months establishments which assist them and of their arrival in Switzerland. Destitute ensure their protection. Those who EU citizens should have the same seek asylum have the same access to access to premium reductions as any healthcare as children of asylum resident. seekers. However, since the European crisis, a According to state regulations, the right lot of EU citizens have settled in to seek asylum is guaranteed for all Switzerland to find a job. In practice, to unaccompanied minors in avoid them accessing social Switzerland492. This right is strictly assistance, cantons are authorised to personal493, therefore whether remove their residence permit if they unaccompanied minors reach the age lose their job and do not have enough of discernment, they can make an resources to stay in Switzerland. In the application for asylum personally, or Vaud canton, regional social centres they will have to be represented by a which have responsibility for “trustworthy person”494. These persons assistance often report those who ask are assigned by the canton for help shortly after their arrival to the authorities495. Cantonal Office for Population and Migrants489. It is important to stress that even if an unaccompanied minor reaches the age Termination of pregnancy of discernment and is able to fill out an asylum application on their own, they According to Article 119 of the Criminal will have to be assisted by a Code490, termination of pregnancy is “trustworthy person” representative possible up to 12 weeks following the 496 during the procedure . beginning of a women’s last period. After 12 weeks, termination is only Therefore, the issue of this possible if a doctor considers that representative is crucial regarding there is physical danger for the asylum requests by unaccompanied pregnant woman. Terminations of minors. On 4 February 2015, the pregnancy are included in the basic United Nations Committee on the health insurance services and are Rights of the Child addressed a therefore entirely reimbursed for number of recommendations to 491 insured persons (Article 30 LAMal) . Switzerland, one of which relates to the rights of unaccompanied minors497.

492 Op. cit. note 490, Article 19 al. 2 489 M. Danesi, “L’aide sociale au coeur des 493 crispations”, Le Temps, 4 February 2014, https://www.bj.admin.ch/content/dam/data/bfm/ (accessed 18 April 2015), asyl/verfahren/hb/c/hb-c10-f.pdf http://www.letemps.ch/Page/Uuid/0713c18e- 494 Ibid. 8d1e-11e3-a0c7- 495 Op. cit. note 493 33a92f4fec1d/Laide_sociale_au_c%C3%83% 496 Asylum Law of 1998, E2%80%A6%C3%A2%E2%82%AC%C5%93u http://www.admin.ch/opc/fr/classified- r_des_crispations compilation/19995092/index.html#a82a 490 Op. cit. note 478 497 http://www.asile.ch/vivre- 491 Op. cit. note 471 ensemble/2015/02/07/odae-romand-lonu-

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Indeed, the United Nations experts are is not sufficient in itself as a criterion, concerned that certain cantons may as the person’s level of integration into assign representatives who do not Swiss society, respect for the law, have any experience or training and family situation (notably the presence therefore are not able to guarantee the of children), financial situation and best interests of the minor. duration of stay in Switzerland Accordingly, the United Nations (preferably more than five years) are recommends that representatives be systematically examined by the properly trained and that Federal Administrative Court. In unaccompanied minors be excluded practice, obtaining this permit remains from the accelerated asylum exceptional. There is no possibility to procedure498. appeal the Court’s decision. In Switzerland, apart from the Provisional admission (F permit) can difference in the cost of compulsory also be granted to people for whom the insurance and the obligation to take execution of an expulsion order is not into account the best interests of the possible, legal or reasonably child by the authorities, no specific enforceable (Article 83 al. 1 LETr). legal provision exists regarding access Article 83(4) of the LETr foresees that to healthcare for unaccompanied “the execution of the decision cannot minors compared with children who be reasonably requested if the accompany their family. deportation or expulsion of the foreign national to his or her country of origin Protection of seriously ill or provenance concretely puts that foreign nationals person in danger, for example in the event of war, civil war, generalised People in situations considered of “an violence or medical necessity”. The extreme seriousness” or hardship can Federal Administrative Court obtain a humanitarian residence jurisprudence establishes that an permit (B permit). Indeed, people who expulsion is unenforceable if the reside in Switzerland without a person “can [no longer] receive residence permit can request the adequate care guaranteeing the application of Article 30(1)b of the minimum conditions of existence”. Federal Act on Foreign Nationals (LETr) of 16 December 2005. The Treatment of infectious definition of “extreme seriousness” depends on the examination of several diseases criteria referred to in Article 31 of the Costs linked to HIV screening and HIV Ordinance of 24 October 2007 related treatment are covered by the basic to the admission, residency and compulsory health insurance500. exercise of a lucrative activity499. People need a medical prescription from a doctor. A serious health condition for which no treatment in the country of origin exists In term of access to screening and treatment of infectious diseases, there are many differences depending on the sinquiete-des-conditions-daccueil-des-enfants- canton. migrants-en-suisse/ 498 Ibid. 499 Ordinance on admission, residence and gainful employment of 2007, http://www.admin.ch/opc/fr/classified- 500 Order of the Interior Federal Department compilation/20070993/index.html#a31 (DFI) of 1995, Article 12d

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In Neuchâtel, people may have access to anonymous screening but they have to pay around €60 for HIV screening (€30 for those under 20 years old) and around €40 for hepatitis C screening. For undocumented migrants who are not covered by the basic compulsory health insurance, treatments for HIV and hepatitis C are unaffordable. For instance, triple therapy treatment costs around €1,500 per month. This price does not include analysis. Some NGOs decide to pay the monthly contributions to the basic health insurance in a limited way to people with low incomes, especially undocumented migrants, in order that they can get health coverage and thus free treatment for a period of one year. However, this scheme is not enough to cover all undocumented migrants.

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GERF505) were brought under a single TURKEY system. At present, both social security and National Health System health insurance (General Security Service) procedures are carried out by Constitutional basis the Social Security Institution (SSI). Article 56 of the Constitution of Turkey of 1982, amended in 2010, states, Organisation and funding of Turkish “that it is the duty of the state (…) to healthcare system ensure that everyone leads their lives Health services are financed through in conditions of physical and mental the health insurance scheme, the health and to secure cooperation in GHIS, which covers the majority of the terms of human and material population, and services are provided resources through the economy and by both public and private sector increased productivity, the state shall facilities506. The SSI is funded through regulate the central planning and 501 payments by employers and functioning of the health services” . employees and government Article 60 explains that “everyone has 502 contributions in cases of budget the right to social security” . deficit507. Towards universal health coverage The Ministry of Health is the main actor in planning and supervising health Since 2003, Turkey has been 508 implementing its Health services . Transformation Programme (HTP) with The private sector has gained power the goal of realising universal health over recent years, particularly after coverage through the General Health arrangements paved the way for Insurance System (GHIS)503. private provision of services to the SSI. Turkey finances healthcare services In 2006, the parliament ratified the Law 509 on Social Insurance and Universal from multiple sources . Social health Health Insurance (Law No. 5510 – GHI insurance contributions take the lead, Law)504. With this law, the three followed by government sources, out- separate schemes (Bağ-Kur, SSK and of pocket payments and other private sources510. The SSI finances the cost of healthcare services provided by health service providers through the premiums collected from universal 501 Constitution of the Republic of Turkey of insurance holders. 1982, http://www.hri.org/docs/turkey/part_ii_3.html#a rticle_56 502 Ibid. 505 M. Tatar et al., “Turkey: Health system 503 R. Hunter, “TURKEY’S HEALTH CARE review”, Health Systems in Transition, Vol. 13 REFORM: THE 2023 CHALLENGE”, No. 6, 2011, TURKISH POLICY Quarterly, Vol. 12 No. 2, http://www.euro.who.int/__data/assets/pdf_file/ 2013, http://turkishpolicy.com/pdf/vol_12-no_2- 0006/158883/e96441.pdf hunter.pdf 506 Ibid. 504 Social Insurance and Universal Health 507 Op. cit. note 505 Insurance Law of 2006, 508 Op. cit. note 505 http://turkishlaborlaw.com/images/turkish- 509 Op. cit. note 505 social-security-law/social-security-law-5510.pdf 510 Op. cit. note 505

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The universal health insurance  specific groups receiving a premium is 12.5% of income. Of this monthly pension from the premium, 5% is the insurance holder’s government (such as war share deducted from the gross salary veterans); and 7.5% is the employer’s share511.  people recognised as stateless who have applied for or been Accessing Turkey healthcare granted protection; system  people in receipt of 513 In theory, as introduced by the GHI unemployment benefit, etc. . Law, the GHIS provides individuals residing in the country with The GHI Law also determined the comprehensive, fair and equitable rules of entitlement. Accordingly, in access to healthcare services, order to benefit from the GHIS, an regardless of their economic situation. individual must have paid a minimum of 30 days of general health insurance The system is available to foreign contributions in the last year514. Self- residents paying social security employed people (formerly covered by contributions. With the Social the Bağ-Kur) and those who were not Insurance and General Health previously covered by any other Insurance, everybody residing in the scheme must have paid at least 60 country legally is included in the health days of contributions515. system. In addition to this, the new system extended free health coverage In addition, there has been an for children below 18512. With the new extension of the coverage period for system, all children get free health former members of the SSK and Bağ- services even if their parents have Kur, as well as for active civil servants, when they cancel their membership for outstanding debts on their insurance 516 payments. any reason . Previously, they were covered for up to 10 days after Article 60 of the GHI Law (as amended cancellation; now both they and their by Article 38 of 2008/5754 Law and dependants can benefit from the GHIS Article 123 of 2013/6458) states that for 90 days, provided they have paid the following population groups are 90 days of contributions in the last covered by the GHIS: year517.  former members of the SSK, In accordance with Article 60 of the Bağ-Kur and GERF, active civil GHI Law518, refugees do not pay servants and Green Card insurance premiums, they are not holders, as well as their deemed to be insurance holders, and dependants; the same applies to citizens with very low incomes. The latter are defined as citizens whose domestic income per capita is less than one third of the 511 http://www.invest.gov.tr/en- minimum wage, determined using the us/investmentguide/investorsguide/employees andsocialsecurity/pages/turkishsocialsecuritys ystem.aspx 512 O. Karadeniz, “Extension of Health Services 513 Op. cit. note 505 Coverage for Needy in Turkey: From Social 514 Op. cit. note 505 Assistance to General Health Insurance”, 515 Op. cit. note 505 Journal of Social Security, 2012, 516 Op. cit. note 505 http://www.acarindex.com/dosyalar/makale/ac 517 Op. cit. note 505 arindex-1423911988.pdf 518 Op. cit. note 504

 Page 117 TURKEY testing methods and data as stipulated charge (with the exception of drug co- by the SSI, and taking into account payments) when they needed care. their expenses, movable and immovable property and their rights Since 2012, the Green Card system arising from these. The minimum wage has become part of the GHIS, joining is around €430519, so destitute citizens the SSI. Destitute citizens in Turkey have less than approximately €143 per can access Turkey’s healthcare month. system, according to the same criteria as under the previous Green Card The SSI provides preventive care free scheme. of charge for every citizen, even those without health coverage. Regarding Access to healthcare for medicines, a co-payment of €1 is migrants required for prescriptions. If more than three medicines are included in the Authorised residents prescription, this co-payment increases It is not compulsory for foreign by €0.30 for each medicine. nationals to join the SSI health

scheme. Those wishing to join may do Co-payments for outpatient care have so after one year of residence in been introduced for all those covered Turkey with a residence permit. During by the SSI who present at hospitals this year, health services are not free without a referral from a primary care of charge and people have to pay out physician (GP); patients pay €5 to of pocket for any services. public hospitals. However, inpatient 520 services are fully covered .Visits to In practice, in Istanbul, foreign primary care facilities do not require a nationals can have access to inpatient 521 co-payment . services in public hospitals by payment of the fee for people without health Green Card scheme insurance (“tourist fee”). A medical In 1992, the government introduced a consultation with a GP costs around Green Card scheme for destitute €40. households with incomes below the national minimum and for families on However, in accordance with Circular social assistance, financed from No. 2010/16 issued by the Prime general budget revenues522. The Minister, emergency healthcare Green Card scheme provided a special services for all individuals are card giving free access to outpatient supposed to be free without any distinction between private or public and inpatient care, covering inpatient 523 medication expenses, but excluding healthcare institutions . the cost of outpatient drugs. Green Card holders, being poor people, did Asylum seekers and refugees not directly contribute to the healthcare Turkey was one of the original system, but received benefits free of signatories to the 1951 Refugee Convention. However, it adopted the Convention with a “geographical 519 http://www.fedee.com/pay-job- limitation”. evaluation/minimum-wage-rates/ 520 Op. cit. note 505 521 Op. cit. note 505 522 R. Atun, et al., “Universal health coverage 523 http://www.admdlaw.com/health-care- in Turkey: enhancement of equity”, the Lancet, services-for-foreigners-in- Vol 382, No 9886, 2013. turkey/#.VOCdrku6w7s

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This means that Turkey assumes The amended Article 60 of the GHI responsibility for refugees coming from Law grants public health insurance to countries that are members of the those recognised as asylum seekers or Council of Europe (CoE). For those stateless persons525. However, under coming from outside this zone, Turkey the definition used by the Ministry of offers limited protection in the form of the Interior, only United Nations High temporary asylum. This means that Commissioner for Refugees (UNHCR) those found to be refugees from - recognised, non-European refugees outside Europe can stay only are regarded as “asylum seekers”526. temporarily and must find a long-term Since the Ministry of the Interior does solution outside Turkey524. not issue any documentation indicating that a person is an “asylum seeker”, Moreover, it is important to bear in this provision within the law has no mind that in Turkish regulations the practical use527. terms “refugee” and “asylum seeker” are defined differently from the Moreover, different reports show how established definitions based on in practice this law is not properly international law. Therefore, a refugee implemented and does not guarantee is defined as a foreign national or access to healthcare for asylum stateless person of European origin seekers. Indeed, it has been reported who has been recognised as such that only seven asylum seekers and according to the criteria within Article 1 598 stateless individuals in Turkey of the Refugee Convention by the were covered under universal health Ministry of the Interior (MOI). An insurance as of July 2011, according to asylum seeker is defined in Turkish data from the Ministry of Interior528. In regulations as a foreign national or addition, over 25,000 “refugees and stateless person of non-European asylum applicants”, as they are origin whose status as an asylum currently defined in Turkish law, lack seeker has been recognised by a universal health insurance529. decision of the MOI that they meet the criteria within Article 1 of the Refugee Recently, the Law on Foreigners and Convention. International Protection, which was passed by parliament in April 2013 and The GHI Law that came into force in came into force in April 2014, makes 2008 represented a step forward, as it certain changes to the asylum system entitled “refugees and stateless in Turkey, even though the [individuals]” to universal health geographical limitation remains in insurance under its Article 60.

Therefore, according to Turkey’s 525 Amnesty International, “STRANDED regulations and particular use of Refugees in Turkey denied protection”, United terminology, Article 60 of this law Kingdom, 2009, https://www.amnesty.org/download/Documents seemed to consider asylum seekers as /48000/eur440012009en.pdf individual holders of the universal 526 Ibid. health insurance. 527 Op. cit. note 525 528 Op. cit. note 525; http://www.bianet.org/english/other/139208- new-legislation-to-ease-foreigners-access-to- healthcare-in-turkey 529 Op. cit. note 525; 524 http://www.bianet.org/english/other/139208- http://www.refugeesolidaritynetwork.org/learn- new-legislation-to-ease-foreigners-access-to- more/turkey-asylum-basics/ healthcare-in-turkey

 Page 119 TURKEY place under the new law. For example, pharmacists refuse to supply free the section entitled “Rights and medicine to refugees. This Obligations” under this law, arrangement excludes refugees from specifically, Article 89, does include in Iraq. the national healthcare system asylum applicants who are not mentioned in Undocumented migrants 530 the GHI Law . Undocumented migrants do not have access to healthcare through the Refugees and asylum seekers must GHIS. Since the circular of 2 prove their lack of resources as November 2011 came into force on 1 destitute nationals. They have to January 2012, the government has submit a claim to the Social Aid and enforced a “tourist fee” of around €50 Solidarity Foundation. However, only for an emergency consultation in public an “ikamet” (a kind of residence permit) hospitals532. Moreover, the amount can give them access to a “citizen charged for specialised care for a number” which is necessary to initiate person considered to be a tourist is the procedure for fee exemptions and four times that for non-tourists. In only a few asylum seekers and 531 practice, these prices are applicable to refugees can obtain one . Thus, undocumented migrants who require mostly, the healthcare requirements of care. the claimants are not covered. In addition, the healthcare system Therefore, in practice, access to reform in Turkey which has been healthcare for asylum seekers and implemented since 2003 made the refugees is denied or takes too long to primary healthcare centre, where be really effective. This means they undocumented migrants could access usually have to pay out-of-pocket for healthcare with a GP, accessible only health services, be it antenatal and to individuals with health coverage. postnatal care for pregnant women or Undocumented migrants have to go to children’s vaccinations. expensive private clinics to vaccinate In addition, a new legislative their children. arrangement was made last year in Public hospitals are obliged to treat relation to refugees from Syria and everyone in case of emergency. Iraq, whose numbers in Turkey are However, the team in Istanbul has gradually increasing. Under this observed that undocumented migrants arrangement, introduced by the may often be refused treatment or Temporary Protection Regulation, reported to the police by medical and hospital-based medical examinations, administrative providers when they treatment bills and medicine cost- present at the emergency departments sharing by refugees from Syria are of public hospitals533. covered by the Prime Minister’s Disaster and Emergency Management According to the Doctors of the World Authority. However, since this agency – Médecins de Monde (MdM) partner takes a long time to make payments, in Turkey, ASEM, in 2014, organisations supporting migrants

condemned the arrests by the police of 530 Law on Foreigners and International several foreign men who were Protection of 2014, http://www.refworld.org/pdfid/5167fbb20.pdf 531 M. Blézat and J. Burtin, « Soigner le mal 532 Ibid. par le rien », Plein droit, juin 2012, No 93. 533 Op. cit. note 531

 Page 120 TURKEY hospitalised and then taken and hospitals are willing to accept payment interned in Kumkapi detention centre. by instalments or sometimes they call This phenomenon has been observed the police who take the woman and since at least 2010534. In most cases, her new-born into custody. these arrests break the continuity of care and they also demonstrate the Pregnant women in Istanbul do not cooperation which exists between the have access to pregnancy termination. police and hospital staff535. ASEM sends them to a private clinic in Kumkapi which charges between €160 According to the law contradicted by and €180 until four weeks of the 2011 circular, everyone should pregnancy. The price increases the have free access to emergency closer the termination is to the end of services regardless of their legal the legal period of ten weeks536. status. However, the law does not define the term “emergency care”, so The minor children of undocumented the interpretation of the law is left to migrants also have no access to hospital staff. Thus, public hospitals healthcare. They may have access to often ask migrants to pay their medical vaccination at a primary healthcare bill for the emergency care they centre but these centres usually receive. require the child to be registered with the authorities. Each vaccine costs In contrast, other public hospitals around €18, added to the medical accept undocumented migrants for consultation which costs around €40. treatment. For a medical consultation with a GP, they have to pay around Unaccompanied minors €40 (“tourist fee”), eight times more Prior to the Law on Foreigners and than individuals with health coverage. International Protection adopted in In practice, undocumented migrants 2013, there were no specific legal have to rely on organisations such as provisions with regard to the detention ASEM to act as mediators in their of minors. The 2006 Ministry of Interior access to public hospitals. “implementation directive” (Security Circular No.57), defining asylum In Istanbul, undocumented pregnant procedures under Turkey’s 1994 women often do not have access to Asylum Regulation, stated that antenatal and postnatal care. ASEM temporary asylum applications for generally sends pregnant women to unaccompanied minors were to be the Saint-Georges Hospital, with which fast-tracked so that minors could be they have an agreement, so they can transferred to shelters of the State have access to antenatal care (this Child Protection Agency537. comprises two consultations: one at around three months and one at eight months).

Otherwise, pregnant women have to 536 Abortion in Turkey is legal until the 10th pay out-of-pocket hospital fees. For week after the conception, although that can example, a delivery by caesarean be extended to the 20th week if the pregnancy section is around €3,500 and a vaginal threatens the woman's mental and/or physical delivery is around €1,000. Sometimes, health, or if the conception occurred through rape. 537 Global Detention Project, Immigration Detention in Turkey, April 2014, 534 Op. cit. note 531 http://www.globaldetentionproject.org/fileadmin 535 Op. cit. note 531 /docs/Turkey_report.pdf

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However, the circular recommends the should have access to education use of medical tests for determining (Article 59 (1-ç-d))543. the age of minors if they do not have documentary proof of their age, or if The law states that unaccompanied minors who apply for international the police have doubts about the age 544 stated in such documentation538. It protection are not to be detained . specifically allows minors to be held in Those aged under 16 will be placed in reception centres and until the results government-run shelters, while those of these tests are issued they are held over 16 can be placed in “reception with adults and people who may have and accommodation centres provided that favourable conditions are ensured” been accused of and convicted of 545 crimes539. (Article 66) . Moreover, there is no margin of error Thus, there is a difference in treatment applied to the result of the tests, as between different groups of recommended by international unaccompanied minors. Those who standards540. The 1997 UNHCR apply for international protection and ‘Guidelines on policies and procedures who are waiting for the result of their in dealing with unaccompanied application or who have been accepted children seeking asylum’ state that, as a refugee should receive protection when scientific procedures are used to from the state and should have access determine the age of the child, margins to healthcare. Those who receive a of error should be applied541. decision and have their application refused may be detained546. In addition, a policy was adopted by the 2005 UNHCR ‘Procedural Protection of seriously ill standards for refugee status foreign nationals determination under UNHCR’s mandate’, which states that age Law no. 6458 on Foreigners and International Protection of April assessment should be resolved in the 547 favour of the child542. 2013 makes provision for a humanitarian residence permit in The 2013 law provides that the best specific cases. interest of children shall be respected. However, it also states that families Article 46 of the law states that, and unaccompanied children can be “under the following cases, upon detained for removal purposes but that approval of the Ministry, a humanitarian residence permit with a they should be given separate accommodation arrangements at removal centres and that children 543 Op. cit. note 537 544 Op. cit. note 537 545 Op. cit. note 537 546 “During his visit, the Special Rapporteur on 538 Refugee Advocacy & Support Program, the Human Rights of Migrants expressed Unwelcome Guests: The Detention of concern about the situation of children at both Refugees in Turkey’s “Foreigners’ the Kumkapi and Edirne removal centres. Boys Guesthouses, November 2007, over the age of 12 apprehended with their http://www.hyd.org.tr/staticfiles/files/rasp_dete mothers were automatically separated from ntion_report.pdf their mothers and placed in orphanages 539 Ibid. (SRHRM 2012)”, 540 Op. cit. note 538 http://www.globaldetentionproject.org/countries 541 Op. cit. note 538 /europe/turkey/introduction.html 542 Op. cit. note 538 547 Op. cit. note 530

 Page 122 TURKEY maximum duration of one year at a health centres. Immunisation of time may be granted and renewed by preschool children is the leading focus the governorates without seeking the among these services. conditions for other types of residence permits: a) where the best interest of Turkish citizens without health the child is of concern; b) where, coverage only have access to free notwithstanding a removal decision or screening and treatment for ban on entering Turkey, foreign tuberculosis. Regarding HIV, nationals cannot be removed from everyone, even individuals with health Turkey or their departure from coverage, has to pay for their Turkey is not reasonable or treatment which is very expensive. ; [(…)] e) in cases when possible Finally, undocumented migrants do not foreign nationals should be allowed to have access to treatment. According to enter into and stay in Turkey, due to the team in Istanbul, most of them or in view of the protection emergency would have better access to these of the national interests as well as treatments in their country of origin reasons of public order and security, in through non-governmental the absence of the possibility to obtain organisations working in these areas. one of the other types of residence Thus, the small minority of permits due to their situation that undocumented migrants that find out precludes granting a residence permit; that they are HIV positive often decide f) in ”. extraordinary circumstances to return to their country of origin to be In these cases, seriously ill foreign treated. nationals can obtain a humanitarian residence permit and not be expelled to their country of origin or to their country of former usual residence.

Prevention and treatment of infectious diseases The treatment of infectious diseases is covered by the guarantee package of the GHIS. In medical examinations, STIs such as HIV/AIDS and syphilis as well as tuberculosis are checked free of charge. Tuberculosis is also checked during employment recruitment processes and for other people who may have contact with infected people (also free). Turkish citizens, authorised residents, asylum seekers and refugees with health coverage have free access to screening and treatment for hepatitis B and tuberculosis. Preventive health services for refugees are delivered by local public and family

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The Health Act 2009 established the UNITED KINGDOM NHS Constitution548 which formally brings together the purpose and National Health System principles of the NHS in England, its values, as they have been developed Organisation and funding of British by patients, public and staff, and the healthcare system rights, pledges and responsibilities of patients, the public and staff549. In the United Kingdom, a Scotland, Northern Ireland and Wales comprehensive public health service have also agreed a high-level was established by the National Health statement declaring the principles of Service Act of 1946 and subsequent the NHS across the UK, even though legislation. The NHS was finally services may be provided differently in introduced two years later. It was born the four countries, reflecting their out of a long-held ideal that quality different health needs and healthcare should be available to all situations550. nationals and residents in the UK and free at the point of use. That principle The NHS is intended to provide remains at its core. universal health coverage to the population in the UK. All those This health system is known as a “ordinarily resident” (see definition Beveridgean system, financed by below) in the UK are automatically general taxation which ensures that entitled to healthcare that is largely each person should be protected from free at the point of use through the cradle to grave. The NHS is managed NHS551, except for certain minor separately in England, Northern charges. People from EU countries are Ireland, Scotland and Wales. Some also entitled to care free at the point of differences have emerged between delivery if they have an EHIC. People these systems in recent years but they who are not ordinarily resident, such remain similar in most respects and as short-term visitors or undocumented continue to be described as a unified migrants, are only entitled to limited system. free secondary care in emergency Despite numerous political and departments and for certain infectious organisational changes, the NHS diseases, unless they fit into one of the remains to date a service available categories of people who are exempt “universally” that cares for people on from treatment charges. the basis of need and not ability to pay, From April 2013, in England, all GP and which is funded by taxes and practices belong to a Clinical national insurance contributions. With the exception of charges for some prescriptions and services, the NHS remains free at the point of use. This 548 The NHS Constitution for the England of 26 principle applies throughout the UK but March 2013, decisions about specific charges may http://www.nhs.uk/choiceintheNHS/Rightsandp differ in the different countries of the ledges/NHSConstitution/Documents/2013/the- UK. nhs-constitution-for-england-2013.pdf 549 K. Grosios et al., “Overview of healthcare in the UK”, EPMA Journal, 2010, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3 405352/pdf/13167_2010_Article_50.pdf 550 Ibid. 551 Op. cit. note 106

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Commissioning Group (CCG)552 which being554. The leading case in which the commissions most health services for term was defined concerned the population in its area, including: entitlement to grants for higher education. The House of Lords defined  planned hospital care; ordinary residence as “a man’s abode  rehabilitative care; in a particular place or country which  urgent and emergency care; he has adopted voluntarily and for  most community health settled purposes as part of the regular services; order of his life for the time being,  maternity services; and whether of short or of long duration”555.  mental health and learning disability services553. That definition was later applied by the Court of Appeal in the context of the The concept of ordinary residence entitlement of rejected asylum seekers The NHS (Amendment) Act 1949 to free NHS secondary care, with the created powers – now contained in caveat that in order to be ordinarily Section 175 of the 2006 NHS Act – to resident one must have a legal right or charge people not “ordinarily resident” explicit permission from the in the UK for health services. The immigration authorities to remain in the powers were first used in 1982 to UK. The Court went on to find that make Regulations in relation to NHS “temporary admission” (a form of entry hospital treatment (now consolidated to the UK granted pending an as the NHS (Charges to Overseas immigration decision, to people liable Visitors) Regulations 2015). to detention and removal) does not amount to residence556. Since 1982, anyone not ordinarily resident in the UK has not been In May 2014, the government entitled by right to free NHS hospital published a new Immigration Act 2014 treatment. An exemption from charges explaining that it was designed to make it “more difficult for illegal within the Charging Regulations must 557 apply to someone who is not ordinarily immigrants to live in the UK”. resident in the UK, otherwise they will be liable for charges for NHS hospital treatment. 554 The concept of ordinary residence Department of Health, Internal review of the overseas visitor charging system - Part 2 appears in many areas of law, but until Analysis of the overseas visitor charging recently it hadn’t been defined in system, legislation. Instead, it took its meaning https://fullfact.org/sites/fullfact.org/files/782677 from case law and meant, broadly, R%20Chap%202%20of%20Review%20pages %201-52.pdf living in the UK on a lawful and 555 R v Barnet LBC, ex parte Shah, 1983, properly settled basis for the time House of Lords, http://www.bailii.org/uk/cases/UKHL/1982/14.ht ml 552 http://www.patient.co.uk/doctor/clinical- 556 R v Secretary of State for Health, 2009, commissioning-groups-ccgs Court of Appeal, 553 Guide to the Healthcare System in England http://www.refworld.org/docid/49d1fca62.html Including the Statement of NHS Accountability 557 Please note that MdM and its partners, for England, May 2013, especially PICUM, absolutely disagree with the https://www.gov.uk/government/uploads/syste use of « illegal » designing a person. Only the m/uploads/attachment_data/file/194002/9421- laws saying that a person is illegal are illegal. 2900878-TSO- No one is illegal. http://picum.org/en/our- NHS_Guide_to_Healthcare_WEB.PDF work/terminology/

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According to the Government558, the care. Extension of charging to these Act is intended to: areas will be subject to a further consultation, which is not likely to take  introduce changes to the place before autumn 2015. removals and appeals system, making it easier and quicker to Accessing the NHS remove those with no right to be in the UK; Primary care  end the “abuse” of Article 8 of As of 1 April 2014561, patients in the European Convention on England pay €11.30 per prescription, Human Rights – the right to but patients who need more than 13 respect for family and private prescriptions per year or four life; and prescriptions in three months can  559 prevent illegal immigrants obtain reductions through a accessing and “abusing” public 562 560 prescription prepayment system . In services or the labour market . Wales563, Scotland564 and Northern Ireland565, prescription charges have Provisions in the Immigration Act 2014 been abolished. regarding entitlement to National Health Service treatment came into Medicines administered at a hospital, a force in April 2015 (see further details walk-in centre or a GP practice, below). prescribed contraceptives, medicines supplied at a hospital or local clinic for In addition to the changes in primary the treatment of sexually transmitted and secondary legislation, the infections or tuberculosis are free. Department of Health (DH) has Furthermore, all prescriptions are free introduced a programme aimed at for patients over 60, under 16 years of recovering costs from foreign nationals age (and under 18 for full-time called the Migrant and Visitor Cost students), pregnant women and Recovery Programme. The programme mothers who have had their child in is split into four phases: improving cost the last year, the chronically ill (e.g. recovery from the current charging cancer and diabetes patients) and system, improving identification of disabled patients, as well as for people those who are eligible for/exempt from charging, and implementing the migrant surcharge and extended charges to other services including primary and Accident and Emergency 561 http://www.nhsbsa.nhs.uk/HealthCosts/Docum ents/HealthCosts/HC11_April_2014.pdf 558 Race Equality Foundation, Access to 562 services: the Immigration Act 2014 and key http://www.nhs.uk/NHSEngland/Healthcosts/P equality impacts, 2014, ages/PPC.aspx http://www.edf.org.uk/blog/wp- 563 content/uploads/2014/09/Equality-impacts-IA- http://www.wales.nhs.uk/nhswalesaboutus/bud Sepp2014-final.pdf getcharges 559 Please note that MdM and its partners, 564 especially PICUM, absolutely disagree with the http://www.psd.scot.nhs.uk/prescriptioncharge use of « illegal » designing a person. Only the s.html laws saying that a person is illegal are illegal. 565 No one is illegal. http://picum.org/en/our- http://www.nhs.uk/ipgmedia/national/Asthma% work/terminology/ 20UK/Assets/Prescriptionchargesandasthma.p 560 Op. cit. note 558 df

 Page 126 UNITED KINGDOM who receive some form of means- Regulation 2 of the NHS (General tested social security benefit566. Medical Services Contracts) Regulations 2004569 (GMS Regs) Patients on a low income can claim for which govern the delivery of many help with health costs (by filling out an NHS primary medical services570, HC1 form). Help with health costs defines “patient” as including depends on the patient’s financial temporary residents. Paragraph 16 of resources and not on immigration Schedule 6 GMS Regs571 goes further status. The NHS decides whether a in specifying that “contractors may (…) patient should receive full help with accept a person as a temporary health costs (an HC2 certificate) or resident provided it is satisfied that the partial help (an HC3 certificate). The person is temporarily resident away certificate is usually valid for one year from his normal place of residence and from the date of issue and must be is not being provided with essential produced each time when collecting a services (or their equivalent) under any prescription or receiving treatment, e.g. other arrangement in the locality where dental care, glasses, etc. he is temporarily residing; or is moving from place to place and not for the time In England, Section 3 NHS Act 2006 being resident in any place”. as amended by Section 13 Health & 567 Social Care Act 2012 states that GPs have a general discretion to CCGs “must arrange for the provision register or refuse to register anyone in of services to patients (…) usually their geographically-defined catchment resident in its area”. Usual residence is area572, but can only refuse not formally defined, but Regulation 3 applications for inclusion in the patient of the National Health Service (Clinical list on reasonable grounds (e.g. the list Commissioning Groups (CCGs) – is closed, the patient does not live in Disapplication of Responsibility) 568 the GP’s catchment area). Refusals Regulations 2013 specifies that must not be related to the applicant’s people are to be treated as “usually ethnic origin, gender, social class, age, resident” at the address given by them religion, sexual orientation, (or by someone on their behalf), and if appearance, disability or medical they give no address then they are to condition573. Under equality laws race be treated as usually resident includes nationality and ethnic or wherever they are present, thereby national origins574, so in the absence of formally unlinking immigration status from eligibility for primary care. 569 The National Health Service (General Medical Services Contracts) Regulations of 2004, http://www.legislation.gov.uk/uksi/2004/291/reg 566 ulation/2/made http://www.nhs.uk/NHSEngland/Healthcosts/P 570 Many primary medical services are ages/Prescriptioncosts.aspx provided under the NHS (Personal Medical 567 National Health Service Act of 2006, Services Agreements) Regulations 2004 (‘the http://www.legislation.gov.uk/ukpga/2006/41/se PMS Regs’) instead, but the relevant ction/3 ; Health and Social Care Act of 2012, provisions are identical in both sets of http://www.legislation.gov.uk/ukpga/2012/7/sec Regulations. tion/13 571 Op. cit. note 569 568 The National Health Service (Clinical 572 Op. cit. note 569 Commissioning Groups— Disapplication of 573 Op. cit. note 569 Responsibility) Regulations of 2013, 574 Equality Act of 2010, http://www.legislation.gov.uk/uksi/2013/350/reg http://www.legislation.gov.uk/ukpga/2010/15/se ulation/3/made ction/9

 Page 127 UNITED KINGDOM eligibility criteria for primary care that immigration application578. It will also are based on immigration status, a be paid by third-country nationals refusal of primary care for these already in the UK who apply to extend reasons is likely to be unlawfully their stay. discriminatory. The health surcharge will be €270 per Secondary care year and €200 per year for students, payable upfront and for the total period Ordinarily resident of time for which migrants are given 579 All those “ordinarily resident” in the UK permission to stay in the UK. are automatically entitled to secondary Reciprocal healthcare agreements healthcare that is largely free at the point of use through the NHS575. Under Regulation 14 NHS (Charges to People who are not ordinarily resident, Overseas Visitors) Regulations 580 such as visitors or undocumented 2015 , “no charge may be made or migrants, are only entitled to limited recovered in respect of any relevant free secondary care in emergency services provided to an overseas departments and for certain infectious visitor where those services are diseases, unless they come within one provided in circumstances covered by of the categories of people who are a reciprocal agreement with a country exempt from charges. or territory specified in Schedule 2” of the Regulations581. Section 39 Immigration Act 2014, which came into force on 6 April Exemptions 2015, introduced a partial definition Some NHS services are free to of “ordinary residence” which everyone regardless of the status of excludes all those who do not have the patient: indefinite leave to remain in the UK576. This includes those who need  Services provided for the leave to enter or remain but also treatment of a condition caused those currently living and working by (i) torture; (ii) female genital in the UK with limited leave to mutilation; (iii) domestic remain577. violence; or (iv) sexual violence, provided that the overseas Other provisions in the Immigration Act visitor has not travelled to the 2014 that also came into effect on 6 United Kingdom for the purpose April 2015 mean that nationals of of seeking that treatment582. countries from outside the EEA coming  Accident and emergency to the UK for longer than six months services, whether provided at a will be required to pay a “health hospital accident and surcharge” when they make their emergency department, a minor

578 Op. cit. note 576 575 Op. cit. note 106 579 576 Immigration Act of 2014, https://www.gov.uk/government/news/migrant- http://www.legislation.gov.uk/ukpga/2014/22/se health-surcharge-to-raise-200-million-a-year ction/39 580 The National Health Service (Charges to 577 Immigration Act of 2014 - Summary of Overseas Visitors) Regulations of 2015, Provisions, http://www.legislation.gov.uk/uksi/2015/238/reg http://www.jcwi.org.uk/sites/default/files/Immigr ulation/14/made ation%20Act%202014%20Summary%20Provi 581 Ibid. sions.pdf 582 Op. cit. note 580

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injuries unit, a walk-in centre or Any treatment which is considered to elsewhere; but not including any be immediately necessary by clinicians services provided after the (including all maternity care), whilst overseas visitor has been chargeable, must be provided without accepted as an inpatient or at waiting for payment or even a deposit. an outpatient appointment, in However, the patient may still be billed other words no emergency during or after treatment587. Hospitals treatment given elsewhere in are required to inform the Home Office the hospital583. of patients who owe the NHS more  Family planning services and than €1,350 and such people may be treatment for sexually refused visa renewals or regularisation transmitted infections584 – of their immigration status until the although details of the services debt is paid588. are not specified in Reg. 9, family planning clinics typically Access to healthcare for offer advice about sexual and migrants reproductive health, as well as contraception (combined oral Asylum seekers and refugees contraceptive pills, progestogen-only pills, Regulation 15 (a) of the NHS (Charges progestogen injections, to Overseas Visitors) Regulations 2015 emergency contraception and states that anyone who has been intrauterine devices), limited granted temporary protection, asylum supplies of free condoms, or humanitarian protection under the cervical screening and immigration rules made under Section pregnancy tests585, as well as 3(2) of the Immigration Act 1971 is testing for STIs. exempt from charges. Regulation 15(b)  Diagnosis and treatment for states that anyone who has made a communicable diseases such formal application with the Home as influenza, measles, mumps, Office to be granted temporary tuberculosis and viral protection, asylum or humanitarian hepatitis586. protection is also fully exempt from charges whilst their application is being processed589.

583 Op. cit. note 580 584 Op. cit. 580 585 http://www.nhs.uk/Conditions/contraception- Acute Respiratory Syndrome (SARS), guide/Pages/contraception-clinic-services.aspx smallpox, tetanus, tuberculosis, typhus, viral 586 Schedule 1 of the Regulations specifies hemorrhagic fever, viral hepatitis, whooping those diseases for which no charge is to be cough, yellow fever and… thanks to the 2012 made: acute encephalitis, acute poliomyelitis, amendment, also HIV/AIDS. anthrax, botulism, bruscellosis, cholera, 587 Department of Health, Guidance on diphtheria, enteric fever (typhoid and implementing the overseas visitor hospital paratyphoid fever), food poisoning, haemolytic charging regulations 2015, uraemic syndrome, infectious bloody https://www.gov.uk/government/uploads/syste diarrhoea, invasive group A streptococcal m/uploads/attachment_data/file/418634/Imple disease and scarlet fever, invasive menting_overseas_charging_regulations_2015 meningococcal disease (meningococcal .pdf meningitis, meningococcal septicemia and 588 Ibid. other forms of invasive disease), legionnaires’ 589 The National Health Service (Charges to disease, leprosy, leptospirosis, malaria, Overseas Visitors) Regulations of 2011, measles, mumps, influenza that might become http://www.legislation.gov.uk/uksi/2011/1556/re pandemic, plague, rabies, rubella, Severe gulation/11/made

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This exemption will apply to the family responsibility, however, different of the asylum seeker if they are living exemptions, policy and guidance exists in the UK with that person on a in each of the four countries and permanent basis. In practice, asylum access to free hospital treatment for seekers can register with a GP; the refused asylum seekers can therefore National Asylum Support Service, a differ from country to country within the section of the United Kingdom Border UK594. Agency, usually applies for an HC2 certificate valid for six months for Focus on pregnant women and asylum seekers590. Asylum seekers children and rejected asylum seekers who are Under this scheme, pregnant women not entitled to free prescriptions under have free access to antenatal, delivery these categories have to make a Low and postnatal care. The children of 591 Income Scheme HC1 claim . asylum seekers and refugees, like adults, have free access to the NHS Regulation 15 also exempts from and this includes vaccination. charges rejected asylum seekers receiving support under Section 95 of Undocumented migrants the Immigration and Asylum Act 1999592; and people who have made Undocumented migrants should have an application to be granted temporary access to primary care. Indeed, the protection, asylum or humanitarian Secretary of State for Health (health protection under the immigration rules minister) announced that there is no which was rejected and who are formal requirement to provide supported under Section 4(2) of the documentation when registering with a 1999 Act (e); or Section 21 of the GP. GPs do not have any financial National Assistance Act 1948. reason not to register undocumented migrants – their global sum payments In 2009, the Court of Appeal in in respect of overseas patients do not England and Wales, overturning an differ from that of other patients595. earlier High Court judgment, ruled that Finally, there is no minimum period rejected asylum seekers could not be that a person needs to have been in considered ordinarily resident in the the UK before a GP can register UK for the purposes of the charging them596. regulations and could not become exempt from charges after living in the The NHS allows people from abroad – UK for 12 months prior to treatment593. if they are accepted for NHS treatment As health policy is a devolved – to claim help with health costs in the same way as other patients. In the same way as UK citizens, 590 undocumented migrants can be http://www.nhsbsa.nhs.uk/HealthCosts/1136.a exempt from prescription charges, spx 591 dental care charges, etc. with an HC2 BMA Ethics, Access to health care for asylum seekers and refused asylum seekers – certificate. guidance for doctors, November 2012, http://bma.org.uk/- /media/files/pdfs/practical%20advice%20at%2 0work/ethics/asylumseekeraccessguidancenov 594 Op. cit. note 591 ember2012.pdf 595 592 http://www.publications.parliament.uk/pa/cm20 http://www.legislation.gov.uk/ukpga/1999/33/se 1213/cmhansrd/cm121026/text/121026w0001. ction/95 htm 593 Op. cit. note 556 596 Op. cit. note 587

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Adults over 60 have automatic free Charges for secondary care are prescriptions and eye tests. They can applied to undocumented children in obtain free dental treatment with an the same ways as adults. HC2 certificate. However, obtaining an exemption certificate does not ensure EU citizens that an undocumented patient can EU citizens have the same access to access NHS care – it only helps with primary care as nationals and can the cost of prescriptions. benefit from the same exemptions from Undocumented migrants do have to secondary care charging regulations. pay for NHS hospital and secondary Entitlement to free NHS treatment will care charges (see below). depend on the individual’s circumstances and, in particular, Regarding access to secondary care, whether they are insured in their as mentioned above, undocumented country of origin (which is best migrants are only entitled to limited demonstrated by having an EHIC. EEA free secondary care in emergency nationals may also, of course, be departments and for certain infectious “ordinarily resident” in the UK if they diseases, unless they come within one are here lawfully, have been for more of the categories of people who are than a short period and intend to exempt from charges. Thus, they have remain. to pay to access secondary care. If insured, an EEA national is exempt Undocumented pregnant women from charges for “all medically Undocumented pregnant women necessary treatment”, i.e. treatment should receive maternity care but this that it is medically necessary during is chargeable. Indeed, maternity care, their temporary stay in, with a view to including antenatal care, delivery and preventing them from being forced to postnatal care, is not free at the point return home for treatment before the of use as it is considered as secondary end of their planned duration of stay. care. Thus, hospitals usually bill for a For instance, regarding England, this full course of care throughout the means597: pregnancy, which is around €4,000 if there are no complications.  diagnosis of symptoms or signs occurring for the first time after The Department of Health has the visitor’s arrival in the UK; stressed repeatedly that providers also  any other treatment which, in have human rights obligations, the opinion of a medical or meaning that treatment considered by dental practitioner employed by clinicians to be immediately necessary or under contract with a CCG, is (including all maternity treatment) must required promptly for a condition never be withheld from chargeable which: patients, even if they have not paid in  arose after the visitor’s advance. arrival; or  became acutely Children of undocumented migrants exacerbated after their Vaccination is available for all children arrival; or and adults through their GP and baby  would be likely to clinics. In practice, children are only become acutely accepted by GPs if at least one of their parents is already registered. Children also have free access to dental care. 597 Op. cit. note 587

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exacerbated without procedure which can then be charged treatment; plus for like maternity care.  the treatment of chronic, or pre- existing, conditions, including Unaccompanied minors routine monitoring. Unaccompanied minors who are “seeking asylum” or have “refugee If economically active in the UK (i.e. status” are exempt from charges in the employed, self-employed, involuntarily same way as any other asylum seeker unemployed for less than six months or refugee. If there is nobody with or temporarily incapacitated), the parental responsibility who is able to patient is likely to have a right to reside look after them, they enter local in the UK under the Immigration (EEA) authority care under the Children Act Regulations 2006 and EU Directive 1989 and become “looked after 2004/38. The UK is thus prohibited children”, meaning that they are from treating such patients any exempt from all charges600. differently from UK nationals, so as Unaccompanied minors whose asylum long as they are not short-term visitors claims are rejected will, once they turn they will have a right to free hospital 18 and leave local authority care, no treatment either by being considered longer be exempt from charging. “ordinarily resident” in the UK, or by having an enforceable right to Protection of seriously ill treatment through EU law598. foreign nationals Termination of pregnancy Discretionary Leave and Humanitarian Termination of pregnancy is possible Protection were introduced on 1 April 2003 to replace Exceptional Leave to during the first 24 weeks of pregnancy 601 (and in certain circumstances Remain . thereafter) and must be carried out in a hospital or a specialist licensed clinic Humanitarian Protection is granted (e.g. in some local family planning when a person is found not to be a clinics or genito-urinary medicine refugee under the 1951 Convention clinics that are also accessible to relating to the Status of Refugees and undocumented women). the 1967 Protocol (the Refugee Convention) but there is a well- Two doctors must agree that a founded fear of the death penalty, termination would cause less damage torture, inhuman and degrading to a woman’s physical or mental health treatment or a serious threat against than continuing with the pregnancy599. his/her life relating to widespread According to the MdM UK team in London, it may be difficult to obtain a termination of pregnancy free of 600 charge without a referral from a GP. In J. Simmonds and F.Merredew, “The Health Needs of Unaccompanied Asylum Seeking addition, in some areas, termination of Children and Young People”, EP23 - LAC 9.4 pregnancy is seen as an elective Unaccompanied asylum seeking children, https://www.nice.org.uk/guidance/ph28/eviden ce/looked-after-children-ep23-unaccompanied- 598 Op. cit. note 580 asylum-seeking-children-john-simmonds-and- 599 Abortion Act of 1967, florence-merredew2 http://www.legislation.gov.uk/ukpga/1967/87/co 601 ntents; https://www.gov.uk/government/uploads/syste http://www.nhs.uk/conditions/Abortion/Pages/I m/uploads/attachment_data/file/312346/discret ntroduction.aspx ionaryleave.pdf

 Page 132 UNITED KINGDOM violence resulting from a situation of there to enable him/her to meet that internal or international armed conflict. fate with dignity”603.

Cases where it is claimed that removal To meet the very high Article 3 would be a breach of Article 3 of the threshold an applicant must show European Convention on Human exceptional circumstances that prevent Rights on medical grounds will not be return, namely that there are considered eligible for Humanitarian compelling humanitarian Protection, given that “in such cases considerations, such as the applicant the alleged future harm would emanate being in the final stages of a terminal not from the intentional acts or illness without prospect of medical omissions of public authorities or non- care or family support on return. State bodies, but instead from a naturally occurring illness and the lack The duration of Discretionary Leave of sufficient resources to deal with it in granted is determined by a the receiving country”602. Instead, they consideration of the individual facts of should be considered under the the case but leave is not normally Discretionary Leave policy. granted for more than 30 months at a time604. Subsequent periods of leave This Discretionary Leave can be can be granted providing the applicant granted to persons (seeking asylum or continues to meet the relevant criteria. not) who require medical, social or another form of assistance which can Thus, foreign nationals who apply for be provided in the UK. Discretionary Leave have to be close to death in order to have a chance to The improvement or stabilisation of an get it in the UK. applicant’s medical condition resulting from treatment in the UK and the Prevention and treatment of prospect of serious or fatal relapse on HIV expulsion do not in themselves render expulsion inhuman treatment contrary The question of who should be able to to Article 3 of the European receive free HIV/AIDS screening and Convention on Human Rights. treatment in the UK has been a much debated public health issue and on 1 October 2012 screening and treatment The threshold set by Article 3 is 605 therefore a high one as interpreted by was made free to anyone in the UK . the UK. It is “whether the applicant’s In 2004, free HIV treatment was made illness has reached such a critical available only to those legally living in stage that it would be inhuman the UK. This meant that short-term treatment to deprive him/her of the overseas visitors and undocumented care which s/he is currently receiving migrants (such as failed asylum and send him/her home to an early seekers or people who had not applied death unless there is care available

603 N. v Secretary of State for the Home Department, 2005, House of Lords, http://www.bailii.org/uk/cases/UKHL/2005/31.ht 602 N. v United Kingdom, 2008, European ml Court of Human Rights, 604 Op. cit. note 601 http://hudoc.echr.coe.int/sites/eng/pages/searc 605 http://www.aidsmap.com/HIV-treatment- h.aspx?i=001-86490#{"itemid":["001-86490"]} and-care/page/2526102/

 Page 133 UNITED KINGDOM for legal residence) had to pay to receive antiretroviral HIV treatment through the National Health Service606. However, a High Court case in April 2008 saw a judge declare that refusing free NHS treatment to failed asylum seekers was unlawful and a possible breach of human rights607. In March 2009, though, this ruling was overturned and the Court of Appeal ruled that failed asylum seekers should not be classified as ordinarily resident in the UK, meaning they were not entitled to free NHS treatment and care. The 2012 change in policy was largely made because of the public health benefits of ensuring universal access to HIV treatment. Adherence to HIV treatment (or antiretrovirals) reduces the risk of HIV transmission and therefore prevents new HIV infections. It is hoped that the opportunity to access free HIV screening and treatment will make people more likely to get tested and find out their status608.

606 The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations of 2004, http://www.legislation.gov.uk/uksi/2004/614/co ntents/made 607 S. Boseley, “Asylum seekers have right to full NHS care, high court rules, but government considers appeal”; The Guardian, 2008, http://www.theguardian.com/uk/2008/apr/12/im migration.publicservices 608 http://www.avert.org/hiv-treatment-uk.htm

 Page 134 Acknowledgements Contributors This report would not have been This work received support from the possible without the contribution of all Ministry of Health (France), the the coordinators and teams of European Programme for Integration volunteers and employees from the and Migration (EPIM) – a collaborative various Doctors of the World – initiative of the Network of European Médecins du monde programmes Foundations (NEF) – and the and ASEM. European Commission (DG Health and Food Safety), under an operating grant from the European Union’s Health DRI: Lucile Guieu Programme (2014-2020). BE: Stephane Heymans – Sophie Damien The content of this report represents the views of the authors only and is CA: Véronique Houle – their sole responsibility; it cannot be Leaune considered to reflect the views of NEF, CH: Janine Derron – Chloé Bregnard EPIM or partner foundations, or of the (lawyer) European Commission and/or the Consumers, Health and Food DE: Suzanne Bruins – Sabine Furst – Executive Agency or any other body of Gwendolin Buddeberg (lawyer) the European Union. The European ES: Eva Aguilera – Pablo Iglesias - Commission and the Agency do not José Atienza – Beatriz Auseré (lawyer) accept any responsibility for use that – Alberto Leon (lawyer) may be made of the information it : Christina Samartzi – Christina contains. EL Psarra – Konstantina Kyriakopoulou – Irene Vlahou (lawyer) FR: Anne-Lise Denoeud – Nathalie Godard – Janine Rochefort LU: Sylvie Martin – Jean Bottu NL: Myrthe van Midde – Margreet Kroesen – Joella Bravo-Mougan (lawyer) SE: Johannes Mosskin – Louise Tillaeus – Johanna Stjarnfeldt –Tomas Hedmark (lawyer) – Thomas Flodin (lawyer) TR: Lerzan Cane – Dr Sekouba Conde Author – Bayazit Ilhan : Lucy Jones – Phil Murwill – Adam MdM International Network: UK Anne-Laure Macherey Hundt (lawyer) Co-authors Editing: Heather Stacey, language Nathalie Simonnot services [email protected] Frank Vanbiervliet [email protected]

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