2017 Legal Report

ACCESS%TO%HEALTHCARE IN%./%EUROPEAN%COUNTRIES Table of contents Introduction ...... 1 Acronyms ...... 7 Glossary...... 12 BELGIUM ...... 14 National Health System ...... 14 Constitutional basis ...... 14 Organisation and funding of Belgian healthcare system ...... 14 Accessing Belgium healthcare system ...... 15 Access to healthcare for migrants ...... 16 Asylum seekers, refugees and those eligible for subsidiary protection ...... 16 Undocumented migrants ...... 17 EU mobile citizens ...... 20 Unaccompanied minors ...... 21 Protection of seriously ill foreign nationals ...... 22 The admissibility of the application ...... 22 The substantive decision ...... 22 The European Court of Human Rights and the Paposhvili v. Belgium case ...... 23 Prevention and treatment of infectious diseases ...... 24 Access to organ transplantation for foreign people ...... 24 FRANCE ...... 25 National Health System ...... 25 Constitutional basis ...... 25 Organisation and funding of French healthcare system ...... 25 Accessing France healthcare system ...... 26 Universal Medical Coverage: PUMA and CMU-C ...... 27 Supplementary health insurance assistance scheme: ACS ...... 28 The free medical centre system ( Permanence d’Accès aux Soins – PASS ) ...... 29 Positive reform on eligibility criteria ...... 29 New healthcare bill – January 2016 ...... 29 Access to healthcare for migrants ...... 30 Asylum seekers and refugees ...... 30 Undocumented migrants ...... 32 EU citizens ...... 34 Unaccompanied minors ...... 35 Protection of seriously ill foreign nationals ...... 35

i

Prevention and treatment of infectious diseases ...... 37 Sexually Transmitted Infections ...... 37 Tuberculosis ...... 37 The situation in Mayotte ...... 38 Discrimination by the healthcare scheme ...... 38 Compliance to law ...... 38 GERMANY ...... 40 National Health System ...... 40 Organisation and funding German healthcare system ...... 40 Accessing Germany healthcare system ...... 41 Access to healthcare for migrants ...... 42 Asylum seekers and refugees ...... 42 Undocumented migrants ...... 44 Termination of pregnancy ...... 45 EU citizens ...... 46 Unaccompanied minors ...... 46 Protection of seriously ill foreign nationals ...... 47 Prevention and treatment of infectious diseases ...... 48 GREECE ...... 49 National Health System ...... 49 Constitutional basis ...... 49 Historical background ...... 49 Organisation and funding of Greek healthcare system ...... 49 Recent reforms of the healthcare system ...... 49 Functioning of Greek healthcare system ...... 51 Accessing Greece healthcare system ...... 52 Termination of pregnancy ...... 52 Access to healthcare for migrants ...... 53 Asylum seekers and refugees ...... 53 Undocumented migrants ...... 53 EU citizens ...... 54 Unaccompanied minors ...... 54 Protection of seriously ill foreign nationals ...... 56 Prevention and treatment of infectious diseases ...... 56 Detention on public health grounds ...... 56 HIV testing and treatment ...... 57 IRELAND ...... 58

ii

National Health System ...... 58 Basis, Organisation and funding of Irish healthcare system ...... 58 Accessing Ireland healthcare system ...... 60 Access to healthcare for migrants ...... 62 Asylum seekers and refugees ...... 62 Undocumented migrants ...... 63 EU Mobile citizens ...... 65 Reciprocal health agreement ...... 66 Unaccompanied minors ...... 66 Protection of seriously ill foreign nationals ...... 66 Prevention and treatment of infectious diseases ...... 67 Irish travellers: a national specific situation ...... 68 ITALY ...... 69 National Health System ...... 69 Constitutional basis ...... 69 Organisation and funding of Italy healthcare system ...... 69 Accessing the Italian healthcare system ...... 69 Termination of pregnancy ...... 71 Access to healthcare for migrants ...... 71 Asylum seekers, refugees, beneficiaries of subsidiary protection and humanitarian protection ...... 71 Undocumented migrants ...... 71 Unaccompanied minors ...... 74 EU mobile citizens ...... 75 Prevention and treatment of infectious diseases ...... 75 LUXEMBOURG ...... 77 National Health System ...... 77 Constitutional basis ...... 77 Organisation and funding of the healthcare system ...... 77 Accessing Luxembourg healthcare system ...... 77 Access to healthcare for migrants ...... 79 Asylum seekers and refugees ...... 79 Undocumented migrants ...... 80 Unaccompanied minors ...... 81 Termination of pregnancy ...... 81 Protection of seriously ill foreign nationals ...... 81 Prevention and treatment of infectious diseases ...... 83

iii

NETHERLANDS ...... 84 National Health System ...... 84 Constitutional basis ...... 84 Organisation and funding of Dutch healthcare system ...... 84 Accessing the Netherlands healthcare system ...... 84 Termination of pregnancy ...... 85 Access to healthcare for migrants ...... 86 Asylum seekers, refugees and persons eligible for subsidiary protection ...... 86 Undocumented migrants ...... 87 EU citizens ...... 88 Unaccompanied minors ...... 88 Protection of seriously ill foreign nationals ...... 89 Residence permit for medical treatment after one year of postponed departure (Article 64) ...... 90 Prevention and treatment of infectious diseases ...... 91 Medical Health Services in detention centres ...... 92 Undocumented migrants in detention centres ...... 92 NORWAY ...... 93 National Health System ...... 93 Constitutional basis ...... 93 Organisation and funding of Norwegian healthcare system ...... 93 Accessing Norwegian healthcare system ...... 94 Access to healthcare for migrants ...... 98 Asylum seekers and refugees ...... 98 Undocumented migrants ...... 98 Termination of pregnancy ...... 101 EU and EEA citizens ...... 101 Unaccompanied minors ...... 101 Protection of seriously ill foreign nationals ...... 102 Prevention and treatment of infectious diseases ...... 102 ROMANIA ...... 103 National Health System ...... 103 Constitutional basis ...... 103 Organisation and funding of Romania healthcare system ...... 103 Accessing Romania healthcare system ...... 104 Access to healthcare for migrants ...... 106 Asylum seekers, refugees and those eligible for subsidiary protection ...... 106

iv

Undocumented migrants ...... 108 Foreigners in accommodation centres ...... 108 EU mobile citizens ...... 109 Unaccompanied minors ...... 109 Protection of seriously ill foreign nationals ...... 109 Prevention and treatment of infectious diseases ...... 110 SLOVENIA ...... 113 National Health System ...... 113 Constitutional basis ...... 113 Organisation and funding of the Slovenian healthcare system ...... 113 Accessing Slovenia healthcare system ...... 114 Access to healthcare for migrants ...... 117 Authorised non-EU residents ...... 117 Asylum seekers ...... 117 Refugees and persons under international protection ...... 118 Undocumented migrants ...... 118 Termination of pregnancy ...... 119 EU mobile citizens ...... 119 Bilateral agreements ...... 119 Unaccompanied minors ...... 120 Protection of seriously ill foreign nationals ...... 120 Prevention and treatment of infectious diseases ...... 120 Health centres for uninsured persons ...... 121 SPAIN ...... 122 National Health System ...... 122 Constitutional basis ...... 122 Organisation and funding of Spanish healthcare system ...... 122 Accessing Spain healthcare system after 2012 Royal-Decree ...... 122 Reform ending universal access to care ...... 123 Consequences of the 2012 health reform in Spain ...... 124 Access to healthcare for migrants ...... 125 Asylum seekers and refugees ...... 125 Undocumented migrants ...... 126 EU citizens ...... 127 Unaccompanied minors ...... 127 Autonomous communities ...... 128 Protection of seriously ill foreign nationals ...... 130

v

Treatment of infectious diseases ...... 130 SWEDEN...... 131 National Health System ...... 131 Constitutional basis ...... 131 Organisation and funding of Swedish healthcare system ...... 131 Accessing Sweden healthcare system ...... 132 Access to healthcare for migrants ...... 133 Asylum seekers and refugees ...... 133 Undocumented migrants ...... 134 EU mobile citizens ...... 136 Unaccompanied minors ...... 136 Protection of seriously ill foreign nationals ...... 137 Prevention and treatment of infectious diseases ...... 137 SWITZERLAND ...... 139 National Health System ...... 139 Constitutional basis ...... 139 Organisation and funding of Swiss healthcare system...... 139 Accessing Switzerland healthcare system ...... 139 Access to healthcare for migrants ...... 141 Asylum seekers and refugees ...... 141 Undocumented migrants ...... 142 EU citizens ...... 144 Termination of pregnancy ...... 145 Unaccompanied minors ...... 145 Protection of seriously ill foreign nationals ...... 145 Treatment of infectious diseases ...... 146 TURKEY ...... 147 National Health System ...... 147 Constitutional basis ...... 147 Towards universal health coverage ...... 147 Organisation and funding of Turkish healthcare system ...... 147 Accessing Turkey healthcare system ...... 148 Access to healthcare for migrants ...... 149 Authorised residents ...... 149 Asylum seekers and refugees ...... 150 Undocumented migrants ...... 152 Unaccompanied minors ...... 153

vi

Protection of seriously ill foreign nationals ...... 154 Prevention and treatment of infectious diseases ...... 154 UNITED KINGDOM ...... 155 National Health System ...... 155 Organisation and funding of British healthcare system ...... 155 The concept of ordinary residence ...... 156 Accessing the NHS ...... 157 Access to healthcare for migrants ...... 160 Asylum seekers and refugees ...... 160 Undocumented migrants ...... 161 EU mobile citizens ...... 162 Termination of pregnancy ...... 163 Unaccompanied minors ...... 163 Protection of seriously ill foreign nationals ...... 164 Prevention and treatment of HIV ...... 164 Acknowledgements ...... 166

vii

towards European institutions and Introduction stakeholders. When addressing the topic of access to healthcare for people facing multiple Working methodology vulnerabilities, the first obstacles we meet In the framework of the Network, the legal are difficulties in collecting information and report aims to describe 16 national a scarcity of legal provisions, as laws healthcare systems 1, using both legal generally tend to provide for the majority expertise and feedback from the field. The and not for the specific situations. Beyond public healthcare system of each country is the law is the practice. People who fall described as it is foreseen by the national through the cracks of universal healthcare laws, completed by a description of the may experience severe hurdles in keeping reality of access to healthcare. Several with a decent life, especially when financial categories of people are highlighted as resources are missing. specific provisions apply to them, generally restricting their access to the public This legal report intends to collect and healthcare system. gather legal and field information about access to healthcare for people facing The main legal changes for 2017 multiple vulnerabilities. We prefer using the concep t of “vulnerabilities” rather than France “vulnerable people”, for several reasons. On one hand, people do not necessarily The third-party payment system allowing identify with the category of “vulnerable”, for access to healthcare, free at the point of and using a broad and vague concept is not use, was intended to be applicable to relevant. On the other hand, everyone is everyone covered by social health insurance likely to be vulnerable at a given moment of before the end of 2017. However, the new his/her life, and vulnerability may only be a French Minister for Solidarity and Health transitory situation. In other words, the stated in July 2017 that this provision would concept of “vulnerabilities” enables us to not be in vigour by the end of 2017. better understand and pinpoint what the obstacles to access healthcare are. The law n°2016-297 of 14 March 2016 relating to child protection forbids any medical examination of the pubertal development for age assessment purposes. 2 Instead, bone X-rays are to be performed The European Network to Reduce but only as a last resort. This law also states Vulnerabilities in Health, hosted by that medical examination alone cannot be a Médecins du Monde France, was created in sufficient proof for the denial of protection. 2015 and is composed of 23 members in 22 With the law on real equality for overseas European countries. We advocate for better France, adopted on February 2017, the access to healthcare for people facing CMU-C (Complementary Universal vulnerabilities through robust data collected Medical Coverage) should become among the partners and representation applicable in Mayotte by 2025.3

1Belgium (BE), France (FR), Germany (DE), Greece 2Annual activity report 2016 – unaccompanied (EL), Ireland (IE), Italy (IT), Luxemburg (LU), The minors mission (March 2017) Netherlands (NL), Norway (NO), Romania (Ro), http://www.justice.gouv.fr/art_pix/1_RAA_MMNA Slovenia (SI), Spain (ES), Sweden (SE), Switzerland _2016.pdf (CH), Turkey (TR), United kingdom (UK) 3 Strategic document – Mayotte 2025 an ambition for the French Republic p.16

1

children under the age of 17. Parents who do not comply with the new decree risk Germany sanctions. This decree became a law after a A new law on access to social welfare vote in the Parliament on July 2017. (GrSiAuslG ), in vigour since the beginning Vaccines included in the compulsory list of 2017, has drastically reduced the rights should be free. of some EU citizens legally residing in A reform of the co-payment system ( ticket Germany to access social services such as sanitario ) is currently under discussion at healthcare insurance. It concerns people government and regional levels.5 coming from the new EU member states, unemployed, without sufficient means of United Kingdom existence or acquiring a residence permit through their children, and it applies for the In January 2017, a memorandum of first five years of their stay in Germany. understanding came into effect allowing the National Health System (NHS) digital to Ireland share non-clinical data with the Home Office of those suspected of committing The government dropped the Universal immigration offences; this includes names Health Insurance plan, initiated by the and addresses of immigration offenders. reform programme of the health system, for The memorandum is intended to being unaffordable. “[encourage] voluntary return by denying Free GP care for children under 12 years access to benefits and services to which old, initially due for October 2016, has been [those staying in the UK illegally] are not delayed. entitled ” thus, creating another deterrent for migrants to access healthcare.6 Italy Until June 2017, Northern Irish pregnant On March 2017, a new law on the protection women could travel to England to terminate of unaccompanied minors was adopted. The their pregnancy, but would not be covered law provides for a better protection and by the NHS and would have to pay full cost. reception system, which will be In June 2017, the Parliament passed an standardised at a national level. Among the amendment allowing Northern Irish women provisions is a ban on deportation for to be covered by the NHS for abortion in children; a maximum period of detention England. into the reception centres of 30 days (instead of 60 days); a strengthening of the A new rule requiring hospitals to check children’s rights to access healthcare and upfront whether their foreign patients are education.4 entitled to free NHS treatments should come into force before the end of the year. On May 2017, the government issued a However, immediately necessary or urgent decree making vaccination against measles and nine other diseases compulsory for

http://www.mayotte.pref.gouv.fr/content/download/ http://www.lastampa.it/2017/04/06/economia/ticket 5164/43644/file/Mayotte%202025%20Une%20amb -sanitari-meno-cari-ma-stretta-sulle-esenzioni- ition%20pour%20la%20R%C3%A9publique%20- attraverso-il-reddito-isee- %20document%20strat%C3%A9gique.pdf 9YDmllCDUpf1eUeMJQ9L1M/pagina.html 4 Italian Committee for UNICEF 6 Memorandum of Understanding between Health https://www.unicef.it/doc/7324/approvata-la-legge- and Social Care information centre and the Home zampa-per-minori-stranieri-non-accompagnati.htm Office , pp.4-6 5 Article from the newspaper La Stampa (6 April www.gov.uk/government/uploads/system/uploads/ 2017)

2

treatment should not be withheld pending need of subsidiary protection are granted a payment.7 13-month residence permit.10 New rules for age assessment have been implemented in March 2017. People can Spain undergo a voluntary medical age On 12 September 2017, a political assessment (consisting of X-ray and MRI) agreement was reached between the which estimated outcome will be included Spanish civil society (NGOs, healthcare in the decision process for the refugee 11 associations and trade unions) and several status. However, this age assessment political parties.8 Pursuant to this methodology is imprecise and can only agreement, the signatory political parties produce an estimation of the minority of the commit themselves to adopt essential legal applicant. The uncertainty of the results has provisions to ensure a public and universal been the subject of much debate in Sweden. healthcare system. They should submit a law to the Parliament, before the end of 2017, which will aim at guaranteeing universal access to every person living in Spain, regardless their administrative status.

Sweden A new temporary law entered into force on 20 July 2016. This law considerably limits asylum seeker’s possibilities to obtain a permanent residence permit and to be eligible for family reunification. It will be valid for three years and applies for asylum seekers who arrived after 24 November 2015. Before the temporary law of July 2016, asylum seekers, refugees and people in need of subsidiary protection, who had been granted a residence permit, would receive a permanent residence permit.9 Moreover, when someone was granted a permanent residence permit, his/her family could apply for a residence permit, in accordance with the family reunification process. Pursuant to the new temporary law, people considered refugees are granted a three-year residence permit, and people in

7http://www.independent.co.uk/news/uk/politics/bre 10 Swedish migration agency xit-migrants-nhs-treatment-pay-upfront-fees- https://www.migrationsverket.se/English/About- hospital-charge-date-when-a7833111.html the-Migration-Agency/Legislative-changes- 8 Pacto político y social por un sistema nacional de 2016/Limited-possibilities-of-being-granted-a- salud público y universal residence-permit-in-Sweden.html 9 Swedish migration agency 11 Swedish municipality and county council https://www.migrationsverket.se/English/Private- https://skl.se/download/18.413f4ad015c773324e5ef individuals/Protection-and-asylum-in- 95e/1497526194251/PM%20-%20EDoMH%20- Sweden/When-you-have-received-a-decision-on- %20%C3%84ndrade%20%C3%A5ldersbed%C3% your-asylum-application/If-you-are-allowed-to- B6mningar%20av%20ensamkommande%20barn.p stay/Protection-status.html df

3

Summary and comparative tables on access to healthcare In order to facilitate the reading of the report, the following four summary tables give a quick overview of access to healthcare for four categories of persons facing vulnerabilities.

Note: these are concise tables and may not accurately represent the complexity of the situation and the law for each country. Moreover, the columns are not to be considered with a value -based judgement; for instance, “access to healthcare on the same basis as authorised residents” may be more or less positive depending on each country’s health policies. Thus, you can refer to the detailed chapters for an in-depth legal analysis.

The first one gives an overview of access to healthcare for asylum seekers in 16 European countries. Four of the selected countries only allow asylum seekers to access limited healthcare. In one of them (Slovenia) asylum seekers are only entitled to emergency healthcare.

Access to Access to healthcare on No access to healthcare Access to limited 12 healthcare for the same basis as except f or urgent medical healthcare asylum seekers authorised residents assistance

Belgium ! France ! Germany ! Greece ! Ireland ! Italy ! Luxembourg ! Netherlands ! Norway ! Romania ! Slovenia ! Spain ! Sweden ! Switzerland ! Turkey ! United Kingdom !

The second table provides an overview of access to healthcare for undocumented migrants in 16 European countries. Five of the selected countries grant undocumented migrants access to a specific healthcare scheme under certain conditions (e.g. resources, residence, time, application). In two countries, undocumented migrants can access limited healthcare on the same basis as asylum seekers. In the majority of the European countries mentioned in this report, undocumented migrants only have access to healthcare in case of emergency.

12 E.g. limited in time, in which kind of health services they can access

4

Access to Access to Access to No access to healthcare for Access to a specific healthcare on the healthcare if healthcare except undocumented healthcare scheme same basis as they can pay for for urgent medical migrants with conditions asylum seekers it assistance

Belgium ! France ! Germany ! Greece ! Ireland ! Italy ! Luxembourg ! Netherlands ! Norway ! Romania ! Slovenia ! Spain !13 ! Sweden ! ! Switzerland ! Turkey ! United Kingdom !

The third table provides an overview of access to healthcare for children of undocumented migrants. In five countries, children of undocumented migrants can access healthcare on the same basis as authorised residents. In ten of them, children of undocumented migrants are entitled to access healthcare on the same basis as undocumented adult migrants. This last point is not necessarily negative, as France and Belgium have implemented a specific healthcare scheme for undocumented migrants.

Access to healthcare for Access to healthcare on Access to healthcare on Access to healthcare on children of the same basis as the same basis as the same basis as asylum undocumented undocumented adult authorised residents seekers migrants migrants

Belgium ! France ! Germany ! Greece ! Ireland ! Italy ! Luxembourg ! Netherlands ! Norway !

13 The Royal decree 16/2012 excludes undocumented migrants from the healthcare scheme (except for children under 18 years old, pregnant women and emergency care), but most of the autonomous communities provide access to healthcare for undocumented migrants under certain conditions. Thus, we chose to check both categories. For further information, see the chapter on Spain.

5

children of on the same basis as undocumented on the same basis as on the same basis as undocumented adult migrants (2) authorised residents asylum seekers migrants

Romania ! Slovenia ! ! Spain ! Sweden ! Switzerland ! Turkey ! United Kingdom !

The fourth table provides an overview of access to healthcare for unaccompanied minors. In some countries, access to healthcare depends on whether the unaccompanied minors have submitted an application for international protection or asylum.

Access to Access to Access to Specific measures healthcare on the Access to healthcare on the healthcare on the and facilities for same basis as healthcare for same basis as same basis as unaccompanied children of unaccompanied authorised residents asylum seekers children undocumented minors with conditions migrants Belgium ! ! France ! ! Germany ! ! Greece ! Ireland ! ! Italy ! Luxembourg ! Netherlands ! ! Norway !14 ! !15 Romania ! ! Slovenia !16 ! !17 Spain ! Sweden ! ! Switzerland ! ! Turkey ! United Kingdom ! !

14 If they submit an application for asylum 15 If they do not submit an application for asylum 16 If they submit an application for asylum 17 If they do not submit an application for asylum

6

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

7

d’Inscription au Registre DCO Designated Country of des Étrangers ) – BE Origin CLAT Centre for Fighting DE Germany Tuberculosis ( Centre de DFI Federal Department of the Lutte Anti Tuberculeuse ) – Interior ( Département FR Fédéral de l’Interieur ) – CMU Universal Medical CH Coverage ( Couverture DH Department of Health – UK Maladie Universelle ) – FR DMH Urgent Medical Aid CMU-C Complementary Universal (Dringende Medische Medical Coverage Hulp) – BE (Couverture Maladie DOM French overseas Universelle departments ( Département complémentaire ) – FR d’Outre -Mer ) – FR CNAMTS National Health Insurance ECHR European Convention on Fund for Salaried Workers Human Rights (Caisse Nationale ECtHR European Court of Human d’Assurance Maladie des Rights Travailleurs Salariés ) – FR EEA European Economic Area CNS National Health Fund EHIC European Health Insurance (Caisse Nationale de Card Santé) – LU EL Greece COA Central Agency for the ENI code Code for EU citizens on the Reception of Asylum Italian territory for more Seekers ( Centraal Orgaan than three months and not opvang asielzoekers ) – NL registered as authorised CoE Council of Europe residents ( Europei Non COMEDE Medical Committee for Iscritti ) – IT Exiles ( Comité Médical EOPYY National Organisation for pour les exilé s) – FR Healthcare Provision – EL CPAM Primary Health Insurance EPIM European Programme for Funds ( Caisse Primaire Integration and Migration d’Assurance Maladie ) – ES Spain FR ESY National Healthcare CPAS Public Social Welfare System ( Ethniko Systima Centre ( Centre Public Ygeias ) – EL d’Action Sociale ) – BE EU European Union CRAM Regional Health Insurance FADSP Associations Defending Funds ( Caisses Régionale Public Health ( Federacion d’Assurance Maladie ) – de Asociaciones en FR Defensa de la Sanidad CRC Convention on the Rights Publica ) – ES of the Child

8

FARES The Respiratory Diseases Invaliditeitsverzekering) – Fund ( Fonds des Affections BE Respiratoires ) – BE IE Ireland FOSI Federal Office for Social IHC Individual Healthcare Card Insurance – CH – ES FR France IKA Private Employees’ Fund – FSUV Fund for Vital and Urgent EL Care ( Fonds pour les soins INAMI National Institute for urgents et vitaux ) – FR Health and Disability GDP Gross Domestic Product Insurance ( Institut GHIS General Health Insurance National d’Assurance System – TR Maladie-Invalidité ) – BE GKV Statutory Health Insurance IND Immigration and (Gesetzliche Naturalisation Service – Krankenversicherung ) – NL DE INSS National Institute of Social GP General Practitioner Security – NL GrSiAuslG Gesetz zur Regelung von IT Italy Ansprüchen ausländischer LAMal Federal Law on Personen in der Compulsory Healthcare – Grundsicherung für CH Arbeitsuchende nach dem LAsi Asylum Law – CH Zweiten Buch LEA Essential levels of Sozialgesetzbuch und in assistance ( livelli essenziali der Sozialhilfe nach dem di assistenza ) – IT Zwölften Buch LETr Federal Act on Foreign Sozialgesetzbuch – DE Nationals – CH HAS High Authority for Health LFIP Law on Foreigners and (Haute Autorité de Santé ) – International Protection – FR TR HIV Human Immunodeficiency LU Luxembourg Virus MARS Doctor from the Regional HOD Ministry of Health and Health Agency ( Médecin Care Services – NO de l’ARS ) – FR HPSC Health Protection MdM Doctors of the World Surveillance Centre – IE (Médecins HSE Health Service Executive – du monde – MdM ) IE MOH Ministry of Health – RO HTP Health Transformation MOI Ministry of Interior Programme – CH MRI Magnetic Resonance HZIV Auxiliary Illness and Imaging Disability Insurance Fund MSA Agricultural scheme (Hulpkas voor Ziekte en (Mutualité Sociale Agricole ) –FR

9

NEF Network of European ONSS National Social Security Foundations Office ( Office National de NGO Non-governmental Sécurité Sociale ) – BE organisation OPAD Public Employees’ Fund – NHIF National Health Insurance EL Fund – RO PASS Free Medical Centre NHIH National Health Insurance (Permanence d’accès aux House – RO soins de santé ) – FR NHS National Health System – PCT Primary Care Trust – UK UK – SE PHC Primary healthcare – EL NIS National Insurance Scheme PICUM Platform for International –NO Cooperation on NL Netherlands Undocumented Migrants NO Norway PKV Private Health Insurance NOK Norwegian krone (Private NTPF National Treatment Krankenversicherung ) – Purchase Fund – IE DE OAEE Self- PMI Mother and child health em ployed/Entrepreneurs’ centre ( Protection Fund – EL maternelle et infantile ) – OAMal Health Insurance FR Ordinance – CH PPC Prescription Prepayment OCMW Public Social Welfare Certificate – UK Centre (Openbaar PPS number Personal Public Service Centrum voor Number – IE Maatschappelijk Welzijn) – PUMA Universal Medical BE Protection (Protection ODSE Observatory for Maladie Universelle) – FR Foreigners' Right to RHA Regional Health Healthcare (Observatoire Authorities – NO du Droit à la Santé des RIZIV National Institute for Etrangers) – FR Health and Disability OFII French Immigration and Insurance (Rijksinstituut Integration Office ( Office voor ziekte- en Français de l’Immigration invaliditeitsverzekering) – et de l’Intégration ) – FR BE OGA Farmers’ Fund – EL RO Romania OLAI Luxembourg Reception RSI Scheme for the self- and Integration Agency employed ( Régime Social (Office luxembourgeois de des Indépendants ) – FR l’accueil et de RSZ National Social Security l’intégration ) – LU Office Rijksdienst voor Sociale Zekerheid SE Sweden

10

SEK Swedish krona VRGT The Respiratory SI Slovenia Healthcare and SMR Therapeutic benefit Tuberculosis Association evaluation system ( Service (Vereniging voor Médical Rendu ) – FR Respiratoire SSI Social Security Institution Gezondheidszorg en (Sosyal Güvenlik Kurumu ) Tuberculosebestrijding ) – – TR BE SSN National Health Service WHO World Health Organisation (Servizio Sanitario ZZZS Health Insurance Institute Nazionale ) – IT of Slovenia – SL STD Sexually Transmitted Diseases STI Sexually Transmitted Infections STP code Code for undocumented foreigners temporaneously on the Italian territory (Stranieri Temporaneamente Presenti ) – IT TB Tuberculosis TLV Dental and Pharmaceutical Benefits Agency – SE TPS Third-party Social Payment ( tiers-payant social ) – LU TR Turkey TRY Turkish lira UK The United Kingdom UKBA United Kingdom Border Agency – UK UN United Nations 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

11

“children of refugees” or “children of Glossary undocumented migrants”.

Access to healthcare EU mobile citizens The WHO gives three dimensions to access We call EU mobile citizens the people who to healthcare: decide to move from the EU country of their Ø Physical accessibility. This is nationality to live in another EU country. understood as the availability of Healthcare good health services within reasonable reach of those who need Healthcare refers to the services that are them and of opening hours, provided to “for the purpose of promoting, appointment systems and other maintaining, monitoring or restoring aspects of service organisation and health ”.19 delivery that allow people to obtain the services when they need them. Primary care Ø Financial affordability. This is a Primary care is “first-contact, accessible, measure of people’s ability to pay continued, comprehensive and coordinated for services without financial care? First-contact care is accessible at the hardship. It takes into account not time of need; ongoing care focuses on the only the price of the health services long-term health of a person rather than the but also indirect and opportunity short duration of the disease ”.20 costs (e.g. the costs of transportation to and from facilities The Bismarck system and of taking time away from work). Named after the Prussian Chancellor Otto Affordability is influenced by the von Bismarck (1815-1898), the Bismarck wider health financing system and system is based on work and financed by by household income. contributions. In 1883, he established a Ø Acceptability. This captures system where employers pay one third and people’s willingness to seek workers two thirds. By means of this services. Acceptability is low when welfare measure, he succeeded to block the patients perceive services to be workers’ demands about the right to vote ineffective or when social and and divert their support for the Socialist cultural factors such as language or Party. the age, sex, ethnicity or religion of the health provider discourage them The Beveridge system from seeking services. 18 Named after William Beveridge, this Children of asylum seekers, refugees system relies on universal access to and undocumented migrants healthcare and health services financed by the government through taxes. The We consider that no minor can be principle is that no one should live below a considered as an asylum seeker, refugee or minimum standard throughout his/her undocumented migrant. In this report, we lifetime, so healthcare must be free for use the terms “children of asylum seekers”, everyone.

18 David B Evans, Justine Hsu,Ties Boerma Bulletin community healthcare and services for older of the World Health Organization 2013, Volume 91, persons, World Health Organization 2004 Number 8, August 2013, 545-620 20 WHO/Europe 2004 19 Centre for Health Development Ageing and Health Technical Report Volume 5, A glossary of terms for

12

Third-country nationals Third-country nationals are individuals who are citizens of non-EU countries.

Undocumented EU citizens European Directive 2004/38/CE foresees that EU citizens can lose their authorisation to reside, thereby making them, in a certain way - undocumented in a Member State.

Article 7 of the above-mentioned directive states conditions for EU citizens to obtain the right to reside for more than three months. One of these is to prove that they have sufficient resources for themselves and their family members, so that they will not become a burden on the welfare system of the host Member State during their period of residence, and to have comprehensive health coverage in the host Member State.

Therefore, destitute EU citizens do not have the right to reside after three months in the host Member State, if they do not have sufficient resources or/and health coverage. They can be expelled, in the same way as third-country nationals – although stricter rules need to be respected by the Member States. In this document, we refer to this group as undocumented EU citizens.

Universal health coverage (UHC) There is Universal Health Coverage when everyone can access “ the promotive, preventive, curative, rehabilitative and palliative health services they need, of sufficient quality to be effective, while also ensuring that the use of these services does not expose the user to financial hardship ”.21

21 WHO http://www.who.int/health_financing/universal_cov erage_definition/en/

13

BELGIUM

The details of what is covered by the BELGIUM mandatory health insurance, organised by the National Institute for Health and National Health System Disability Insurance (INAMI (in French) or RIZIV (in Dutch)), is determined by a scale Constitutional basis (INAMI nomenclature). Article 23 of the Belgian Constitution of RIZIV-INAMI oversees the general 1994 establishes that “ everyone has the organisation of the compulsory health right to lead a life in keeping with human insurance; however, the task of actually dignity […] To this end, the laws, federate providing insurance falls to the sickness laws and rules referred to in Article 134 funds. These are non-profit organisations guarantee economic, social and cultural with a public interest mission and receive rights, taking into account corresponding the majority of their financial resources obligations, and determine the conditions from RIZIV-INAMI.25 for exercising them. These rights include among others: the right to social security, For the general scheme for employed to healthcare and to social, medical and persons, the National Social Security Office legal aid” . 22 (Office National de Sécurité Sociale – ONSS (in French) and Rijksdienst voor Organisation and funding of Belgian Sociale Zekerheid – RSZ (in Dutch)) healthcare system collects and administers payroll taxes and Belgium has a complex state structure, employment taxes. Then, the ONSS which has an impact on the national health distributes the contributions between health system. Indeed, health competences are insurance companies. These are all private shared between the federal government health insurance companies, called (curative care) and federated entities mutualités (mutual insurance plans) or (prevention). sickness funds except for one public health insurance company called the Auxiliary The Belgian health system is a Bismarck- Illness and Disability Insurance Fund type one, based on the principles of equal (Caisse Auxiliaire d’Assurance Maladie - access and freedom of choice (regarding Invalidité – CAAMI (in French) and health providers, mutual insurance plans). Hulpkas voor Ziekte en National health insurance is compulsory.23 Invaliditeitsverzekering – HZIV (in Dutch)). The auxiliary fund is available for people The national health system consists of a mix who do not wish to join one of the other of private and public actors and is funded by mutual insurance plans. employer and employee contributions, and federal government subsidies. Social The mutual insurance plans take care of the security contributions are deducted reimbursement of medical expenses. In automatically from salaries and are paid to practice, for most medical expenses, the National Social Security Office.24 patients are only responsible for small co- payments for drugs and transport.26

22 Constitution of Belgium 1994 (last updated 8 May http://www.euro.who.int/__data/assets/pdf_file/001 2007), 4/120425/E94245.PDF http://home.scarlet.be/dirkvanheule/compcons/Cons 24 http://belgium.angloinfo.com/money/social- titutionBelgium/ConstitutionBelgium.htm security/ 23 S. Gerkens and S. Merkur, “Belgium: Health 25 Op. cit. note 23 system review” , Health Systems in Transition , vol. 26 W. Van Biesen, N. Lameire, P. Peeters, R. 12, No. 5, XVI, 2010, Vanholder, “Belgium’s mixed private/public health care system and its impact on the cost of end-stage

14

BELGIUM

Although there are several health insurance insurance company of their choice. They companies, the social security system pay contributions for their membership as reimburses them equally for medical well as a fixed amount established by law services. Competition between mutual for the cost of the services. health insurance funds, therefore, is based on the quality of services provided and on Nationals and authorised residents must pay their complementary service offer. in advance for the medical consultation fees charged by the doctor or hospital. They With the law of 26 April 2010 27 , which must submit their receipts for came into effect on 1 January 2012, reimbursement and the money is then paid individuals affiliated to one of the mutual directly into the claimant’s bank account. In insurance plans are obliged to subscribe to general, the cost of a GP consultation is supplementary activities and services, such €25.31 The health insurance company as prevention or welfare services, by paying reimburses € 19 leaving €6 paid by the a contribution if these services are offered patient.32 It should be noted that some by the sickness fund (e.g. orthodontic individuals, depending on their means, pay treatments, homeopathic care, birth grants). less for most medical services.33 The local public social welfare centre ( Centre Public Article 67 of the 2010 Law mentions that no d’Action Sociale – CPAS (in French) and segmentation of contributions is allowed Openbaar Centrum voor Maatschappelijk but there can be differentiation based on Welzijn – OCMW (in Dutch)) may also household composition or social status, in decide – in their internal policy – to accordance with Article 37 of the Law of 14 contribute to the medical costs of authorised July 1994 on Compulsory Medical Care and residents who are too destitute to pay for 28 Sickness Benefit Insurance. Moreover, the important health expenses. annual contribution may vary from one mutual insurance plan to another, from €30 To join a health insurance company, a to €250 .29 membership application must be submitted to one of the mutual insurance plans or to An alternative for destitute people the CAAMI-HZIV. Being private (provided they have permission to reside) is organisations, the mutual insurance plans to be affiliated to the CAAMI-HZIV , which may refuse membership to an applicant. The is free. The CAAMI-HZIV provides access public fund, however, may not refuse to all services covered by the RIZIV- membership to an applicant. This INAMI nomenclature, but not to any guarantees the availability of health 30 supplementary services. insurance to all Belgians. The individual is bound by his/her choice of mutual insurance Accessing Belgium healthcare system plan or the CAAMI-HZIV for a one-year Nationals and authorised residents in period. One advantage is that if affiliated Belgium must register with a health members become undocumented, they keep renal disease”, the International Journal of Health 29 L. Baekelandt, « La cotisation de mutuelle est Care Finance and Economics , 2007 désormais obligatoire », Plusmagazine.be , 26 https://biblio.ugent.be/publication/519184 January 2012, http://plusmagazine.levif.be/fr/011- 27 Law of 26 April 2010 , 1548-La-cotisation-de-mutuelle-est- http://www.ejustice.just.fgov.be/cgi_loi/change_lg. desormaisobligatoire.html pl?language=fr&la=F&cn=2010042607&table_nam 30 https://www.caami-hziv.fgov.be/fr/devenir- e=loi membre 28 Law of 14 July 1994 , 31 http://www.riziv.fgov.be/SiteCollectionDocument http://www.ejustice.just.fgov.be/cgi_loi/change_lg. s/tarif_medecins_partie01_20170101_corr01.pdf pl?language=fr&la=F&cn=1994071438&table_nam 32 Op. cit. note 30 e=loi 33 http://www.belgium.be/fr/sante/cout_des_soins/re mboursements_specifiques/

15

BELGIUM their healthcare coverage for up to a year healthcare services is based on the RIZIV- after their last payment. Dependent children INAMI nomenclature with two exceptions: are bound by their parents’ choice. Ø Healthcare services which are listed The contents of the mandatory health in the RIZIV-INAMI nomenclature insurance organised by RIZIV-INAMI is but not applicable to asylum seekers determined by the RIZIV-INAMI because these services are not nomenclature 34 , which lists over 8,000 considered as necessary in order to partially or fully reimbursable services. lead a life in keeping with human RIZIV-INAMI contributes to the cost of dignity (orthodontics, infertility medication to different degrees, according treatment, etc.) to medical necessity (the degree of Ø Healthcare services, which are not seriousness of the pathology in the absence listed in the RIZIV-INAMI of treatment) 35 and has also frozen the nomenclature but are granted to prices of essential drugs. Thus, eight asylum seekers, as they are part of categories of drugs have been defined.36 daily life (certain category D drugs, glasses for children, etc.). Access to healthcare for migrants Asylum seekers living in a reception centre Asylum seekers, refugees and those are also entitled to free medical services not eligible for subsidiary protection 37 included in the RIZIV-INAMI nomenclature. These services are listed in The 2007 law on the reception of asylum the royal decree of 9 April 2007 39 and seekers and other categories of foreign include: nationals and stateless people 38 defines the entitlement of asylum seekers to medical · Orthodontics care. According to this law, all asylum · Investigation and treatment of seekers are entitled free of charge to health infertility services in order to guarantee them a life in · Dentures, when there is no chewing conditions of human dignity. Access to problem

34 http://www.inami.fgov.be/fr/nomenclature/nomen http://www.inami.fgov.be/fr/themes/cout- clature/Pages/default.aspx#.VL5oNkeG_94 remboursement/par-mutualite/medicament- 35 I. Cleemput and al. « Détermination du ticket produits- modérateur en fonction de la valeur sociétale de la sante/remboursement/specialites/Pages/liste- prestation ou du produit », Health Services Research specialites-pharmaceutiques-remboursables- (HSR), Bruxelles : Centre Fédéral d’Expertise des categories-remboursement.aspx#.WUqEYOuGPcs Soins de Santé (KCE), KCE Report 186BS, 2012. 37 Anyone who is not entitled, does not respond, https://kce.fgov.be/sites/default/files/page_documen according to the Belgian asylum authorities, to ts/KCE_186B_determination_ticket_moderateur_sy asylum in the refugee definition may nevertheless be nthese_second_print_0.pdf eligible for subsidiary protection if he/she is actually 36 Category A: drugs of vital importance (cancer or exposed to serious threats if he/she returned to their diabetes treatment); category B: therapy treatment country of origin. (antibiotics); category C: drugs with symptoms 38 Law on the reception of asylum seekers and other effects; category Cs: vaccine against flu; category categories of foreign nationals and stateless people Cx: contraceptives; category Fa: drugs of vital – 2007 importance for which the reimbursed part is fixed; http://www.ejustice.just.fgov.be/cgi_loi/change_lg. category Fb: essential drugs for which the pl?language=fr&la=F&cn=2007011252&table_nam reimbursed part is fixed; category D: drugs e=loi considered not “essential” and consequently not 39 Royal decree of 9 April 2007 reimbursable such as vitamins, but also paracetamol. http://www.ejustice.just.fgov.be/cgi_loi/change_lg. All patients, including those on a low income, must pl?language=fr&la=F&cn=2007040946&table_nam pay the full cost of D medication, whatever aid e=loi mechanism they benefit from.

16

BELGIUM

· Cosmetic procedures, except entitlement to health insurance under the reconstruction after surgery or RIZIV-INAMI scheme.44 trauma · Dental care under general After four months since the beginning of the anaesthesia asylum procedure, asylum seekers have the right to work. If they do, they can join a 45 It is to be noted that the OCMW-CPAS health insurance. hosting asylum seekers are only reimbursed Pregnant asylum seekers and refugees for medical care following the nomenclature, thus, medical care not Pregnant women seeking asylum or who included in it will not be reimbursed to the have obtained refugee status have access to OCMW-CPAS.40 antenatal, delivery and postnatal care as authorised residents. They also have access While living in a reception centre, asylum to free termination of pregnancy within the seekers’ medical expenses are normally legal period (up to 12 weeks). covered by Fedasil (Agence fédérale pour l'accueil des demandeurs d'asile – federaal Children of asylum seekers and refugees agentschap voor de opvang van Children of asylum seekers and children of asielzoekers – the federal agency for refugees have access to the same healthcare reception of asylum seekers) or one of its as adult asylum seekers, but also to reception partners. If they do not live in a vaccinations as authorised residents under 41 centre (“no shows”) , they must obtain a the RIZIV-INAMI scheme. “payment warranty” (“réquisitoire” ) before they can receive care and treatment Undocumented migrants without having to pay. If they do not obtain In Belgium, undocumented migrants have this payment warranty, the doctor must access to healthcare through the Urgent attach a certificate to their bill, to prove that Medical Aid ( Aide Médicale Urgente – the treatment was necessary. The AMU in French and Dringende Medische administrative procedure is quite Hulp – DMH in Dutch ) specified in the complicated and many healthcare providers Royal Decree of 12 December 1996 relating are unfamiliar with it. to “ urgent medical assistance granted by Individuals who go through the asylum the OCMW-CPAS to foreign nationals procedure and obtain protection in Belgium residing in Belgium illegally ”.46 Despite its under the UN Refugee Convention of 1951 name, AMU-DMH covers both preventive are described as “ recognised refugees” .42 and curative care, and individuals entitled to They receive a Certificate of Inscription in this medical coverage must be granted the Register of Foreign Nationals access to health services beyond emergency (Certificat d’Inscription au Registre des care. Étrangers CIRE – Bewijs van inschrijving Obtaining AMU-DMH 47 is subject to four in het vreemdelingenregister BIVR ) which conditions. The individual must: remains valid for one year and is renewable 43 on request. The CIRE-BIVR gives them Ø Be an undocumented migrant

40 http://www.medimmigrant.be/?idbericht=24&idm 44 Op. cit. note 38 enu=2&lang=fr 45 Op. cit. note 40 41 Asylum seekers who are not living in a reception 46 http://www.medimmigrant.be/uploads/tijdelijk/A structure are called “no shows”. R%2012%20DECEMBRE%201996%20modificati 42 http://www.medimmigrant.be/index.asp?idbericht ons%20MB%20juillet%202014.docx =193&idmenu=2&lang=fr 47 http://www.medimmigrant.be/?idbericht=50&idm 43 Ibid. enu=3&lang=fr

17

BELGIUM

Ø Obtain a medical certificate proving circular of 25 March 2010 notes that the health needs signed by a doctor; OCMW-CPAS may conduct its Ø Prove their place of residence in a investigation by the means it judges municipality; appropriate. An important barrier to Ø Prove their lack of financial resources accessing healthcare is that the social through a mandatory social inquiry investigation can take up to a month (as from the OCMW-CPAS. defined by law). Health problems might become more serious after such a long The OCMW-CPAS must check whether the period of time. Another barrier for access to claimant is undocumented, regardless of healthcare is the fact that the first doctor’s how s/he entered Belgium. The claimant is consultation in order to obtain the medical asked many questions: on arrival conditions certificate proving health needs, has to be (illegally, visa, etc.) and on administrative paid by the undocumented migrant. formalities in Belgium (request for regularisation, asylum, etc.). Questions may Moreover, many undocumented migrants vary considerably from one OCMW-CPAS have difficulty proving their “ place of to another. residence ”, particularly if they are temporarily staying with friends, in The circular of 25 March 2010 48 on the churches, in shelters or are rough sleeping. social investigation required for the Often considerable discretion is exercised at reimbursement of medical charges specifies local level to decide what constitutes that each OCMW-CPAS must understand sufficient evidence of place of residence.51 how it can establish the destitute situation of the claimant. On this point, the law is not In practice, this freedom concerning sufficiently specific and leaves room for assessment at the discretion of each arbitrary treatment. OCMW-CPAS seems to be a source of insecurity for applicants, as there is no In addition, the Law of 30 December visibility concerning the criteria used to 200949 , states that in the case of AMU- assess their situation. It also means that DMH requests, social investigations must these criteria are different depending on be systematic. These provisions added the where in Belgium undocumented migrants following subsection to Article 11 Section 1 sleep. of 2 April 1965 on the funding of healthcare provided by the OCMW-CPAS: “ the This mandatory social investigation is very reimbursement of the charges specified in intrusive in the claimant’s life and in the life the aforementioned Article 4 may only be of those who host them. It often prevents made if a social investigation carried out individuals entitled to the AMU-DMH from beforehand certifies the existence and submitting a request to benefit from it. extent of the need for social assistance ”. 50 Furthermore, an OCMW-CPAS can refuse AMU-DMH due to the applicants’ alleged During the home visit, the OCMW-CPAS refusal to collaborate with the social representative requests personal documents, investigation. such as the lease, rent receipts, invoices and certificate from cohabitants, etc. The If all the conditions are fulfilled, the claimant may benefit from healthcare

48 Circular of 25 March 2010 , 50 Ibid. http://www.ejustice.just.fgov.be/cgi/api2.pl?lg=fr& 51 European Union Agency for Fundamental Rights pd=2010-05-06&numac=2010011203 (FRA), Migrants in an irregular situation: access to 49 Law of 30 December 2009 healthcare in 10 European Union Member States , http://www.ejustice.just.fgov.be/cgi_loi/change_lg. Luxembourg, 2011. pl?language=fr&la=F&cn=2009123001&table_nam e=loi

18

BELGIUM coverage (AMU-DMH). The parameters of primary and secondary health services, this coverage, such as the period for which including maternal care. AMU-DMH is granted (ranging from one consultation to one year for chronically ill Undocumented pregnant women must have patients), or which (local) healthcare full free access to antenatal and postnatal providers can be consulted and how to ask a care as authorised residents if they have healthcare provider for care or treatment, obtained AMU-DMH. are defined by the concerned OCMW- Postnatal follow-up care is financed and CPAS.52 organised by the federated entities: the Birth Overall, once an undocumented migrant is and Childhood Offices (the Office de la entitled to AMU-DMH, his/her healthcare Naissance et de l’Enfance (in French) and expenses will be directly reimbursed to the Kind en Gezin (in Dutch)). Access to health professionals by the OCMW-CPAS Community-financed postnatal or the federal authorities, except for those consultations is free of charge for all who do not have a RIZIV-INAMI women, even without AMU-DMH nomenclature code. coverage. Healthcare providers can refuse to treat an However, certain OCMW-CPAS, often due undocumented migrant who has a medical to unwillingness or lack of awareness, card granted from an OCMW-CPAS in impede access to health services for another region, because the OCMW-CPAS undocumented migrants, including might not reimburse the costs of care.53 If a pregnant women, refusing to grant AMU- person makes an appointment with a doctor DMH. before receiving the certificate from the Pregnancy termination is covered by the OCMW-CPAS they must pay for the AMU-DMH. However, pregnant women appointment themselves and the OCMW- must respect the legal period of 12 weeks of CPAS often refuses to reimburse the costs pregnancy for termination, even though the because it did not agree to the appointment OCMW-CPAS response to the AMU-DMH and had not yet granted AMU-DMH. Some application usually comes one month OCMW-CPAS collaborate with doctors or later.55 In practice, between the pregnancy put in place a system with a first free being certified and AMU-DMH being consultation in order to make the process granted, those 12 weeks have already easier for patients but others do not make 54 passed. However, certain OCMW-CPAS such an effort. have reached agreements with hospitals in 56 Undocumented pregnant women order to speed up the procedure. As mentioned above, the Royal decree Therefore, pregnant women usually prefer refers to “urgent care”, a term that might to try to find the money for the termination well be misleading as the AMU-DMH and pay it directly to the practitioner.57 encompasses a broad range of preventive,

52 https://kce.fgov.be/sites/default/files/page_docum http://files.nowhereland.info/706.pdf ents/KCE__257B_Soins_de_sante_migrants_Synth 55 http://www.viefeminine.be/spip.php?article2701 ese.pdf 56 http://www.medimmigrant.be/?idbericht=273&id 53 Ibid. menu=4&lang=fr 54 Platform for International Cooperation on 57 INAMI, Kluwer a Wolters Kluwer Business, Undocumented Migrants (PICUM) , Undocumented Médecins du Monde, Livre vert sur l’accès aux soins Migrants’ Health Needs and Strategies to Access en Belgique , Waterloo, 2014. Health Care in 17 EU countries, Country Report Belgium , June 2010,

19

BELGIUM

If they succeed in being covered by AMU- quinquies to the Organic Law of 8 July DMH , they pay € 1.80 for the preliminary 197660 relating to OCMW-CPAS centres, examination and € 1.80 for the medical according to which: procedure. For pregnant women who do not have health coverage, termination of “Notwithstanding the provision of this law, pregnancy costs €460. the centre is not obliged to provide social assistance to European Union Member Children of undocumented migrants State nationals or members of their families Children are entitled to the same healthcare during the first three months of their stay or, as undocumented adults. They must obtain if applicable, during the longer period AMU-DMH in order to gain access to provided for in Article 40, Section 4, curative healthcare. Subsection 1, of the law of 15 December 1980 on access to the territory, residence, Since 2004, children are entitled to receive establishment and return of foreign benefits in kind (accommodation, food, nationals, neither is it obliged, prior to the clothes, medical and social assistance).58 acquisition of the right of permanent residence, to grant maintenance As regards preventive healthcare, every assistance .” This legal provision came into child under the age of six has free access to force in February 2012. vaccinations through the Birth and Childhood Office (Office de la Naissance et However, on 30 June 2014 61 , the de l’Enfance – Kind en Gezin). After the age Constitutional Court of Belgium ruled that of six, they must obtain AMU-DMH like Article 12 of the Law of 19 January 2012 adults for all curative and preventive care. breaches Article 10 and 11 of the Constitution in that it allows OCMW-CPAS EU mobile citizens to refuse AMU-DMH to EU citizens during France and Belgium are the only member the first three months of their stay in states to include – under strict conditions – Belgium. Indeed, this measure creates a destitute EU migrants in their healthcare difference of treatment, which is system for undocumented migrants. Yet for discriminatory to EU citizens and their many OCMW-CPAS, this right remains family members, since they cannot claim merely theoretical, as EU mobile citizens for AMU-DMH to OCMW-CPAS, whereas are faced with several administrative extra-European undocumented migrants in barriers. Belgium can benefit from AMU-DMH. This judgment is directly binding and so The Law of 19 January 2012 59 confirmed partially abolished the interpretation of the practices of a majority of OCMW- Article 57 quinquies of the Law of 8 July CPAS: access to healthcare for destitute EU 1976 modified by the Law of 19 January migrants was restricted. This law, 2012. modifying legislation relating to the 62 reception of asylum seekers, adds Article 57 Since then, a circular of 5 August 2014 has been adopted in order to warn OCMW-

58 http://www.ocmw-info- http://www.ejustice.just.fgov.be/cgi_loi/change_lg. cpas.be/images/uploads_x/FV_aidemedicaleurgente pl?language=fr&la=F&cn=1976070801&table_nam __Fr_.pdf e=loi 59 Law of 19 January 2012 61 Judgement of the Constitutional Court, 30 June http://www.ejustice.just.fgov.be/cgi_loi/change_lg. 2014, pl?language=fr&la=F&table_name=loi&cn=20120 http://www.const-court.be/public/f/2014/2014- 11913 095f.pdf 60 Law of 8 July 1976, 62 Circular of 5 August 2014, http://www.ejustice.just.fgov.be/cgi_loi/loi_a1.pl?s ql=%28text%20contains%20%28%27%27%29%29

20

BELGIUM

CPAS presidents about the new This law added a new Article 5/1 without interpretation of Article 57 quinquies. prejudice to Article 5 of the Programme Law providing for the guardianship of third- The Constitutional Court considers that country unaccompanied minors. Article 5/1 Article 57 quinquies must be read as provides that the guardianship referred to in follows: Article 3, §1 st , al 1 st , shall apply to “nationals of European Economic Area Ø Persons who fall within the scope of (EEA) countries ”. this article are not precluded from the right to AMU-DMH; Thus, whether the unaccompanied minors

Ø EU mobile citizens residing in are EU citizens or not, they have the same Belgium, whether or not they are protection under Belgian law. Article 10§1 employed, are not temporarily of the Law of 24 December 2014 states that precluded from the right to social aid. “the guardian ensures that the minor goes to school and receives psychological Therefore, in the light of this judgment, EU support and appropriate medical care ”. migrants in Belgium must have access to AMU-DMH during the first three months of Therefore, unaccompanied minors have their stay. access to healthcare under the RIZIV- INAMI scheme. Pregnant women and children who are EU mobile citizens should have access to However, unlike unaccompanied minors, AMU-DMH as other undocumented unaccompanied EU minors are not entitled migrants. to accommodation via Fedasil because the law of 12 January 2007 on reception has not However, access to termination of been modified accordingly. 65 pregnancy for pregnant EU women is complex due to the legal period of 12 weeks Moreover, the 25 July 2008 circular and the length of time necessary for the determines the conditions for access to application to the AMU-DMH to be health coverage for third-country processed. unaccompanied minors (and, since 2014, for unaccompanied minors from an EEA Unaccompanied minors country): Initially, the law made a distinction between Ø Going to school for three unaccompanied EU minors and consecutive months at an unaccompanied minors from non-EU educational establishment countries. The protection granted to third- recognised by a Belgian authority; country-national unaccompanied minors Ø Being registered at a Birth and was much greater than the one for Childhood Office or registered at an unaccompanied EU minors. establishment of preschool As a result of the Constitutional Court’s education; judgment of 18 July 2013, the law of 12 Ø The minor is not required to go to May 2014 63 was adopted and modified the school by the competent regional Programme Law of 24 December 2002.64 service.

&language=fr&rech=1&tri=dd%20AS%20RANK 64 Programme Law of 24 December 2002 , &value=&table_name=loi&F=&cn=2014080501& http://www.ejustice.just.fgov.be/cgi_loi/change_lg. caller=image_a1&fromtab=loi&la=F pl?language=fr&la=F&cn=2002122445&table_nam 63 Law of 12 May 2014, e=loi http://www.ejustice.just.fgov.be/cgi_loi/change_lg.p 65 http://www.dgde.cfwb.be/index.php?id=2803 l?language=fr&la=F&table_name=loi&cn=20021 22445

21

BELGIUM

Consequently, unaccompanied minors, etc.). Once the request has been submitted, especially older ones have to wait three the medical officer of the Immigration months before accessing healthcare. Office is responsible, since the introduction of a medical filter in February 2012, for Protection of seriously ill assessing whether the illness is serious foreign nationals enough. If the condition clearly does not meet the threshold of gravity, that is to say, In Belgium, by law, seriously ill foreign it does not cause a real risk to life or nationals benefit from special protection, physical integrity or risk of inhuman or which prevents the authorities from degrading treatment, the application of expelling them to their country of origin or Article 9ter may be declared inadmissible. the country where they are resident. If the application is deemed complete, Indeed, according Article 9ter of the Law of passes the medical filter and the residential 15 December 1980 on access to Belgium, investigation conducted by the municipality residence, establishment and return of is positive (it means that homeless people 66 foreign nationals , “ a foreign national cannot apply for 9ter) the Immigration residing in Belgium who proves his/her Office declares Article 9ter admissible and identity in accordance with §2 and who issues a certificate of registration, known as suffers from a disease which causes a real an “Orange Card” for three months. This risk to his/her life or physical integrity or a certificate can be renewed three times for a real risk of inhuman or degrading treatment further three months and then every month if there is no adequate treatment in his/her until the Immigration Office takes a country of origin or in the country where substantive decision. This card does not s/he stays can request a residence permit for entitle the holder to access a health Belgium from the Minister or his/her insurance fund or employment. However, representative (…) The foreign natio nal the holder can request AMU-DMH from the delivers with the applications all relevant OCMW-CPAS of their place of residence.67 and recent information regarding his/her illness and the possibility of and access to The substantive decision adequate treatment in his/her country of The Immigration Office examines whether origin or in the country where s/he stays ”. the necessary treatment for the individual’s This procedure includes two very long condition is available in their country of phases: the admissibility of the application origin or in the country where they are and the substantive decision. resident. In theory, this involves a review of the availability but also the accessibility of The admissibility of the application the treatment. If the administration and the medical officer judge that the treatment is A representative of the Immigration Office not available or not accessible, a one-year (Office des étrangers/ Vreemdelingenzaken ) examines whether residence permit is granted. the formal requirements for the submission In practice, the Immigration Office bases its of the application are met (proof of identity, decision on the degree of severity of the medical certificate issued less than three illness. The foreign national must be months ago clearly indicating the condition, extremely ill to be granted a one-year its severity and estimated treatment needed, residence permit under Article 9ter. This

66 Law of 15 December 1980 , 67 http://www.medimmigrant.be/index.asp?idbericht http://www.ejustice.just.fgov.be/cgi_loi/change_lg. =74&idmenu=5&state=72&lang=fr pl?language=fr&la=F&cn=1980121530&table_nam e=loi

22

BELGIUM residence permit enables the holder to join who appeal the decision must still benefit a health insurance fund, to access the labour from AMU-DMH and can stay in Belgium market and to benefit from social assistance during the appeal. However, the appeal is from the OCMW-CPAS if they are not automatically suspensive and a request destitute. Alternatively, the individual will of suspension has to be made to the Conseil be issued with a reasoned negative decision du contentieux des étrangers (the and an order to leave Belgium. The competent jurisdiction for the appeal).70 individual can appeal the decision to the Council for Foreigners Law Litigation The European Court of Human Rights (Conseil du Contentieux des Etrangers ).68 and the Paposhvili v. Belgium case Over the last decades, the European Court In the judgment of the Court of Justice of of Human Rights (ECtHR) has ruled several the European Union (Grand Chamber) of 18 times in cases related to the expulsion of December 2014 69 , the Court rules that seriously ill migrants. Article 3 of the Article 9ter of the Law of 15 December European Convention on Human Rights 1980 violates Directive 2008/115/EC of the (ECHR) protects a person from being European Parliament and of the Council of expelled, when there are substantial 16 December 2008 on common standards grounds for believing there is a real risk of and procedures in Member States for being subjected to an inhuman or degrading returning illegally staying third-country treatment. Until December 2016, in cases nationals. concerning the removal of a foreigner Indeed, Article 9ter violates the Directive suffering from serious illness the ECtHR because it does not grant a suspensive effect used to rule that only in a very exceptional to the appeal against a negative decision case a medical condition may raise an issue which orders a seriously ill third-country under Article 3. This " very exceptional national to leave the territory of a Member case " only applied to a person at imminent State, when the execution of the decision risk of dying. In a recent decision in the may expose the third-country national to a case Paposhvili v. Belgium of 13 December substantial risk of serious and irreversible 2016 the ECtHR has departed from the damage to their health; and because the law excessively restrictive approach. does not provide, as far as possible, the support of basic needs to the third-country In the case Paposhvili v. Belgium the national in order to ensure that emergency ECtHR ruled that “ article 3 should be medical care and essential treatment of understood to refer to situations diseases can be effectively provided during involving the removal of a seriously ill the period in which the Member State shall person, in which substantial grounds postpone the expulsion of the same third- have been shown for believing that s/he, country national following the appeal of the although not at imminent risk of dying, decision. would face a real risk, on account of the absence of appropriate treatment in the Thus, since this judgment, the appeal receiving country, or the lack of access against a negative decision from the to such treatment, of being exposed to a Immigration Office should be suspensive. It serious, rapid and irreversible decline means that seriously ill foreign nationals in his/her state of health resulting in

68 http://www.medimmigrant.be/index.asp?idbericht http://curia.europa.eu/juris/celex.jsf?celex=62013C =74&idmenu=5&state=72&lang=fr J0562&lang1=fr&type=TXT&ancre 69 Centre public d’action sociale d’Ottignies - 70 http://www.medimmigrant.be/index.asp?idbericht Louvain-la-Neuve v Moussa Abdida , 18 December =74&idmenu=5&state=72&lang=fr 2014, Judgement of the Court of Justice of the European Union (Grand Chamber),

23

BELGIUM

intense suffering or to a significant Gezondheidszorg en reduction in life expectancy ”.71 Tuberculosebestrijding – VRGT ) offer free Moreover, “ Where, after the relevant screening for tuberculosis to all those who information has been examined, serious request it (without taking into account doubts persist regarding the impact of residence status) and provide free treatment removal on the persons concerned – on and follow-up in the case of a positive account of the general situation in the result. receiving country and/or their A number of referral centres offer Sexually individual situat ion – the returning Transmitted Infections (STI) screening State must obtain individual and upon request. Although screening is free sufficient assurances from the receiving (and anonymous) for anyone without State, as a precondition for removal, medical insurance, these centres are obliged that appropriate treatment will be to check systematically whether the patient available and accessible to the persons has medical insurance, which is an concerned so that they do not find additional threshold. themselves in a situation contrary to Article 3 ”.72 Furthermore, most of these referral centres cannot guarantee the provision of treatment The decision shows that the question of if the individual does not have access to availability and accessibility should be part healthcare. of the assessment whether a seriously ill migrant needs to be granted protection from Access to organ transplantation for removal from Belgium. foreign people Prevention and treatment of Article 13ter of the Law on organ removal infectious diseases and organ transplantation, states that “ to be registered as a recipient candidate in a 73 The Royal Decree of 1 March 1971 on the Belgian transplant centre, an individual prevention of contagious diseases covers must either have the Belgian nationality or the list of notifiable diseases on Belgian to be registered in the population register, territory. or for at least 6 months in the foreigner register, or have the nationality of a state The Royal Decree of 13 January 2003 that shares the same organ allocation modifying the Royal Decree of 12 organisation, or have been domiciled in December 1996 stat es in its article 1 that “ in that state for at least 6 months ”. Thus, case of infectious disease, recognised as undocumented migrants and foreigners who such by the competent authorities and have been residing in Belgium for more subjected to prophylactic measures, the than 6 months cannot receive an organ AMU-DMH granted to a patient must transplant. ensure the continuity of care if they are essential to the overall public health ”.74 The Respiratory Diseases Fund ( Fonds des Affections Respiratoires – FARES ) and the Respiratory Healthcare and Tuberculosis Association ( Vereniging voor Respiratoire

71 Case of Paposhvili v. Belgium , 13 December 2016, http://www.gallilex.cfwb.be/document/pdf/24713_0 paragraph 183 00.pdf 72 Case of Paposhvili v. Belgium , 13 December 2016, 74 Royal Decree of 13 January 2003 paragraph 191 http://www.etaamb.be/fr/arrete-royal-du-13-janvier- 73 Royal decree of 1 march 1971 2003_n2003022014.html

24

FRANCE

citizens contribute according to their means FRANCE and receive healthcare services according to their needs. Article L. 1110-1 of the Public National Health System Health Code states that, “ health providers, health facilities […] contribute to […] Constitutional basis guaranteeing equal access to healthcare for The Preamble to the Constitution of 27 each individual as required by their health 79 October 1946 75 , the Declaration of the condition ”. Rights of Man and of the Citizen of 26 Healthcare is managed almost entirely by August 1789 as well as the Charter for the the state and publicly financed through Environment of 2004 76 have formed part of employee and employer payroll the “ constitutional block ”, together with the contributions and earmarked income taxes, Constitution of 4 October 1958, since the revenue from taxes levied on tobacco and decision of the Constitutional Council in alcohol and state subsidies and transfers 1971. from other branches of social security.80 Firstly, the Preamble to the Constitution The health insurance system is dominated guarantees in paragraph 11 “ to all, notably by the National Health Insurance Fund for to children, mothers and elderly workers, Salaried Workers ( Caisse Nationale protection of their health, material security, d’Assurance Maladie des Travailleurs rest and leisure. All people who, by virtue of Salariés – CNAMTS ).81 It covers the their age, physical or mental condition, or majority of the population, including economic situation, are incapable of beneficiaries of universal medical working shall have to the right to receive protection (PUMA). suitable means of existence from society ”.77 Other basic funds cover specific Moreover, the Charter for the Environment occupational groups: for instance, the of 2004 declares that “ everyone has the agricultural scheme ( Mutualité Sociale right to live in a balanced environment Agricole – MSA ) or the scheme for the self- which shows due respect for health ”.78 employed ( Régime Social des Indépendants 82 Organisation and funding of French – RSI ). healthcare system These three main schemes (CNAMTS, Healthcare in France is characterised by a MSA and RSI) were federated into a social security system based on solidarity, National Union of Health Insurance Funds which was created after the Second World (Union Nationale des Caisses d’Assurance War as conceived by the Resistance: all Maladie – UNCAM ) by the 2004 health

75 Preamble to the Constitution of 1946 , 80 The Commonwealth Fund, INTERNATIONAL http://www.conseil-constitutionnel.fr/conseil- PROFILES of Health Care Systems, Australia, constitutionnel/root/bank_mm/anglais/cst3.pdf Canada, Denmark, England, France, Germany, 76 Constitutional Law of 2 March 2005 related to the Italy, Japan, the Netherlands, New Zealand, 2004 Charter for the Environment , Norway, Sweden, Switzerland, and the United States , http://www.legifrance.gouv.fr/Droit- New-York, 2013 francais/Constitution/Charte-de-l-environnement- http://www.commonwealthfund.org/publications/fu de-2004 nd-reports/2013/nov/international-profiles-of- 77 Preamble to the Constitution of 1946 health-care-systems 78 Op. cit. note 76 81 Civitas, Health care Systems: France , updated by 79 Article L. 1110-1 of the Public Health Code, Emily Clarke (2012) and Elliot Bidgood (January http://www.legifrance.gouv.fr/affichCodeArticle.do 2013), Based on the 2001 Civitas Report by David ?cidTexte=LEGITEXT000006072665&idArticle=L Green and Benedict Irvine, EGIARTI000006685741&dateTexte=&categorieLi http://civitas.org.uk/content/files/france.pdf en=cid 82 Ibid.

25

FRANCE insurance reform.83 This federation has French citizens residing in France for more become the sole representative of the than three months 90 and foreign nationals insured people in negotiations with with permission to reside or who have healthcare providers. started a regularisation process, must register with their local CPAM for national The Primary Health Insurance Funds health insurance coverage.91 Having done (Caisses Primaire d’Assurance Maladie – this, an individual is issued with a medical CPAMs ) are responsible for the card, called carte vitale , which indicates the 84 reimbursement of claims and benefits. individual’s national insurance rights in They also manage preventive services and electronic form.92 This card is not a means 85 general health and social care in their area. of payment, but this electronic treatment does facilitate a quicker reimbursement and The former Regional Health Insurance simplifies the procedure for health Funds ( Caisses Régionales d’Assurance professionals and patients. Maladie – CRAMs ) which now fall under their respective Regional Health Agencies The rate of health insurance system (Agences Régionales de Santé – ARS ), coverage (reimbursement) varies across assume responsibility for the CPAMs in goods and services but there are several 86 their area. reasons for patients being exempt from co- payment ( ticket modérateur ). This applies For the majority of patients, medical goods especially to those with long-term chronic and services are not free at the point of use. illnesses ( Affections de Longue Durée – 93 Accessing France healthcare system ALD ), such as diabetes and HIV/AIDS, or those who are entitled to supplementary All residents are entitled to receive publicly universal medical coverage (CMU-C) or financed healthcare through statutory health pregnant women from the first day of the insurance from non-competitive statutory sixth month of their pregnancy.94 health insurance funds - statutory entities whose membership is based on Statutory health insurance funds cover: occupation.87 Statutory health insurance fund eligibility is granted either through Ø Hospital care and treatment in public employment (to salaried or self-employed or private rehabilitation or working people and their children) or as a physiotherapy institutions; benefit to those formerly employed who Ø Outpatient care provided by general have lost their jobs (and their children), practitioners (GPs), specialists, students and retired people.88 In addition, dentists and midwives; universal access is guaranteed for those on Ø Diagnostic services prescribed by low incomes and/or with chronic doctors and carried out by conditions 89 who also fulfil the condition of laboratories and paramedical residence. professionals (nurses, physio- therapists, speech therapists, etc.);

83 K. Chevreul et al., “France: Health system 90 The article D 160-2 II of the Social Security Code review”, Health Systems in Transition , Vol 12, No 6, provides 5 exemptions 2010, 91 Op. cit. note 81 http://www.euro.who.int/__data/assets/pdf_file/000 92 Op. cit. note 81 8/135809/E94856.pdf 93 List of long-term chronic illnesses 84 Ibid. http://www.fondshs.fr/Media/Default/Images/Resso 85 Ibid. urces-Allocations/Liste_des_ALD_30.pdf 86 Ibid. 94 http://www.ameli.fr/assures/soins-et- 87 Op. cit. note 80 remboursements/ce-qui-est-a-votre-charge/le-ticket- 88 Op. cit. note 80 moderateur.php 89 Op. cit. note 80

26

FRANCE

Ø Prescription drugs, medical request, without waiting for the three appliances and prostheses that have months). been approved for reimbursement; and This evolution makes it easier to access Ø Prescribed healthcare-related healthcare and allows its continuity, even transport.95 during periods of unemployment. The status of ayant droit , giving rights to health Statutory health insurance also partially coverage to partners of individuals who are covers long-term and mental healthcare and entitled to it has also been supressed for provides minimal coverage of outpatient adults: it became useless as any individual vision and dental care.96 living legally and in a stable manner in France, even unemployed, has now access Universal Medical Coverage: PUMA to the Universal Medical protection, and CMU-C independently from his/her partner. This reform therefore allowed an The French Universal Medical Coverage is individualisation of access to healthcare. divided in two separate schemes, both intended to ensure a health coverage for the However, this reform also led to an entire population, included destitute intensification of the control of the individuals: the Universal Medical beneficiary’s residence . Besides, the Protection (PUMA), which allows free decrees implementing the PUMA reform access to basic health insurance benefits, make it difficult to holders of residency and the Complementary Universal Medical permits or asylum requests to access the Coverage (CMU-C), which allows to PUMA scheme and may cause delays in additionally benefit from a free obtaining their health insurance coverage. complementary health insurance. The complexification of the administrative procedures may thus alter the achievements Since January 1 st , 2016, the PUMA of the former CMU. (Universal Medical Protection), created by the Social Security Financing Act of 2016 97 The Universal Medical protection does not has replaced the basic Universal Medical concern undocumented migrants, who are Coverage (CMU). covered by a specific scheme called AME (see below). The CMU basic universal coverage, created by the CMU Law of 27 July 1999 98 , PUMA: Universal Medical Protection enabled people who were not covered by the The Universal Medical Protection allows health insurance scheme to have access to those eligible to be covered by the basic healthcare. The PUMA extended the scope health care scheme. The conditions of of the health coverage system: any person eligibility are to work and/or to live in who works or lives legally in France in a France in a legal and stable manner. To stable manner for over three months has the meet the residency condition, an individual right to obtain a health coverage (including must live in France (mainland France 99 or asylum seekers upon the submission of their the French overseas departments

95 Op. cit. note 80 99 The country of France comprises metropolitan 96 Op. cit. note 80 France, including the islands around its coast and 97 https://www.legifrance.gouv.fr/eli/loi/2015/12/21/ Corsica, and a number of overseas departments and FCPX1523191L/jo/texte territories outside the continent of Europe. In this 98 Basic Universal Coverage (CMU) Law of 27 July report the term "mainland France" is used to describe 1999 , all of France excluding the overseas departments and http://www.legifrance.gouv.fr/affichTexte.do?cidTe territories. xte=JORFTEXT000000198392

27

FRANCE

(Départements d’Outre -Mer – DOM ), with CMU-C: Complementary Universal the exception of Mayotte where the scheme Medical Coverage is different (see below)) continuously for The law introducing the PUMA had no more than three months.100 Foreign 101 impact on the Complementary Universal nationals must additionally prove the Medical Coverage, the CMU-C. legality of their residency. EU citizens have a specific status (see below). This condition The CMU-C is a free supplementary health of residency is considered satisfied for insurance. It enables those eligible to have asylum seekers as soon as they start their free access to healthcare at the point of use, claim process, and for holders of a including healthcare services in hospital. Temporary Residency Permit for Health Care. However, lodging a request for To be entitled to CMU-C, an individual asylum and obtaining the necessary must be on a low income: below € 727 per certificates for claiming health coverage month (€ 8,723 per year) in mainland France can take quite a long time, during which the or below € 809 per month (€ 9,709 per year) applicant is not covered. in the overseas departments (except Mayotte).104 The same conditions of There is no income-condition to access the residency must be met as for the PUMA (to PUMA. However, the PUMA is free for live in France in a legal and stable manner individuals on a low income, i.e. below for more than three months). €817.25 per month. Beyond this threshold, it is still possible to benefit from the PUMA, Supplementary health insurance but it becomes chargeable through a assistance scheme: ACS contribution based on 8% of the 102 The Complementary Health Help, called individual’s income . ACS ( Aide Complémentaire Santé ), was In practice, the patient pays for health created in 2005. It provides financial related goods and services (medical assistance to access supplementary health consultations, medication, etc.) but a part of insurance. People who have access to ACS the amount will be reimbursed. As an receive financial support for supplementary example, for a GP consultation, costing € 25 health insurance of between €100 and €550 105 total, the health insurance reimburses the per year depending on age. mandatory part, known as the “social The ACS was created for people who security part” (€ 16.10) and the patient has cannot benefit from the CMU-C, but whose to pay the supplementary part (€ 7.50) and 103 incomes are below the poverty threshold. the flat-rate contribution (€1) . People can To be entitled to ACS, an individual must take out a private complementary health have an income, which does not exceed the insurance (called mutuelle) to cover the threshold for access to CMU-C by more supplementary part. Children are exempted than 35% 106 : € 11,776 per year in mainland from the flat-rate contribution. France or € 13,107 per year in the DOM, except Mayotte. The ACS is valid for one year and its renewal is not automatic.

Since July 2015, users of ACS benefit from the full third-party payment system ( tiers

100 The article D 160-2 II of the Social Security Code 103http://www.cmu.fr/les_droits_a_la_couverture_m provides 5 exemptions aladie.php 101http://www.cmu.fr/resider-en-france-stable- 104 http://www.cmu.fr/plafonds.php regulier.php 105http://www.info- 102http://www.jechange.fr/assurance/mutuelle- acs.fr/acs_qu_est_ce_que_l_acs.php sante/guides/la-cmu-2571 106 Ibid.

28

FRANCE payant): they do not need to pay for their On 18 June 2013, a circular on the medical expenses upfront and are exempted organisation and functioning of PASS 109 from the €1 flat -rate payment.107 created a regional coordination structure with a PASS framework, which evaluates The free medical centre system every PASS in France. MdM FR (Permanence d’Acc ès aux Soins – participated actively in designing what a PASS ) PASS should be. The law against social exclusion of 29 July In practice, the application of the PASS 1998108 created the hospital PASS system system is very heterogeneous and on the model of MdM clinics. This system imperfect: as the system is different in every aims to enable anyone to access outpatient hospital, it is difficult for patients to hospital care, even without health coverage understand and there is no guarantee that and even before administrative procedures they will find the service they need at the have been completed. This system dedicates hospital in their area of residence. a specific budget line for these consultations, which the hospitals can use It should be noted that this scheme enables as they choose. people who cannot afford consultations to gain access to outpatient care only. For any Some hospitals offer a multidisciplinary access to inpatient services, individuals set-up that places social services on the must be in an emergency situation or must frontline: patients who wish to benefit from wait until they have health coverage. the PASS system must first be seen by the dedicated social service, and receive a Positive reform on eligibility criteria “PASS token” to cover their consultation; some specialties will be included in the The financial resources eligibility criteria system, others will not. Other hospitals have for CMU-C and supplementary health a “dedicated PASS”: a GP service, which insurance assistance (ACS) has been 110 offers general consultations for free to those widened, to reach €981 per month in who cannot afford the consultations March 2017. because they have no health coverage, have In 2016, 1,363,506 people were using ACS financial difficulties, etc. in mainland and overseas France (2% of the 111 Medical consultations are accompanied by population) , compared with 826,257 a social consultation, in which social before the widening of the eligibility 112 workers help gather all the necessary criteria. documents and provide information on how In 2016, 5,383,003 people (8% of the to get health coverage. Some PASS only population) 113 had CMU-C compared with agree to see patients who have a potential 4,649,533 in June 2013, before the right to health coverage, others allow widening of the eligibility criteria. unconditional access to their services and the hospital. New healthcare bill – January 2016 A new healthcare bill was adopted on 26 January 2016 114 , bringing several

107 Op. cit. Note 105 111 http://www.cmu.fr/effectifs_acs.php 108http://reaannecy.free.fr/Documents/congres/Cong 112http://www.cmu.fr/fichier- re_IDE/PASS_texte.pdf utilisateur/fichiers/Annuaire_statistique_12- 109Circular of 18 June 2013 , 2013.pdf http://www.sante.gouv.fr/fichiers/bo/2013/13- 113 http://www.cmu.fr/effectifs_cmuc.php 07/ste_20130007_0000_0078.pdf 114 Law on the modernization of the healthcare 110 http://www.cmu.fr/acs.php system – 2016

29

FRANCE significant evolutions to the French However, this law has several flaws: healthcare system as: · Simplification of access to rights Ø the creation of safe supervised drug and care should be a priority of this injection centres, which unlocks bill. All NGOs are waiting for the new opportunities regarding drug integration of the AME into the users’ care and treatment; PUMA. Another expected measure Ø the expansion of the third party is a multi-year CMU-C instead of a payment system (tiers-payant), yearly renewal. widening the conditions of free · Foreseen negative impact on the access to care at point of use, aiming access to healthcare for migrants to reduce the amount of patients with a short permission to stay: giving up seeking care 115 ; breaches of the continuity of health Ø the acknowledgement of the coverage due to complex beneficial character of the presence administrative rules 116 . of interpreters and health mediators · No change to reduce refusal of in health structures; healthcare. The notion of refusal to Ø associations can call upon the High healthcare should be clearly Authority for Health ( Haute defined, the burden of proof should Autorité de Santé – HAS ); be reversed and an independent Ø the Economic Committee for observatory should examine Healthcare products ( Comité refusals of healthcare through a Economique des produits de Santé – situational test. CEPS ) can make a framework · New healthcare bill announces agreement with registered actions aiming to improve access to associations; care in the overseas territories but it Ø midwifes can now perform is still missing the opportunity to Voluntary Termination of match up law in Mayotte with Pregnancy using drugs, which mainland law regarding health expands possibilities of safe coverage. abortion

Ø accreditation of more organisations Access to healthcare for to distribute STD (sexually transmitted diseases) and STI migrants (sexually transmitted infections) Asylum seekers and refugees testing equipment and support to STI & STD prevention According to Article R. 380-1 of the Social Ø Homosexual can now be blood Security Code, asylum seekers and refugees donors (but with restrictions) have the same access to healthcare as authorised residents. In theory, they obtain social security health coverage upon arrival on French territory. They have access to the PUMA and CMU- C if they fulfil the financial conditions upon https://www.legifrance.gouv.fr/eli/loi/2016/1/26/AF 116For more details, see: SX1418355L/jo/texte http://www.medecinsdumonde.org/actualites/presse 115 Only to the social security part, excluding the part /2016/03/17/reforme-de-la-protection-maladie- reimbursed by the optional insurance. The expansion universelle-puma started January 2016 and shall be full on 30 November 2017

30

FRANCE the submission of their request. If they have asylum application, it is forbidden no official documentation, they can make a for the French authorities to sworn statement regarding their financial consider it. Asylum seekers resources. They are exempt from the subjected to the Dublin III system necessity to prove a three-month long are not entitled to social security but residency in France.117 to the AME, as undocumented migrants, according to the circular They can also apply for CMU-C, which will n° DSS/2A/2011/351 of 8 be granted depending on their financial September 2011. In October 2017, resources, as mentioned above. As nationals several French human rights entitled to CMU-C, all their medical associations have raised concern expenses will be supported at the 100% rate about local prefectures detaining of social security. asylum seekers subject to the Dublin III regulation before expelling them, It should be noted that asylum seekers need in violation of the rulings of the to provide an address when they submit Court of Justice of the European their asylum application to the prefecture, Union (of 15 March 2017) and the which then eventually entitles them to French Court of Cassation (of 27 health coverage (PUMA and CMU-C). September 2017).119 However, providing an address is often 120 complicated, as asylum seekers’ · those from “safe countries” who accommodation is usually precarious and so are subject to the accelerated they must use an administrative address to procedure, which denies them a receive their mail. This administrative temporary residence permit, while address may be provided by entitled non- granting them the “right to stay in profit organisations, which are France” until a decision is made by overwhelmed with requests, or a CCAS the authorities about their asylum (Centre Communal d'Action Sociale – application (officially 15 days for Community Centre for Social Action). For the Office for the Protection of instance, in Paris, it may take around five Refugees and Stateless Persons months to get an address. (OFPRA) and four days for people in an administrative detention Some asylum seekers are excluded from the centre 121 ). general legal system by local prefectures: Thus, they can only access AME under · Those who are subject to the Dublin certain conditions (three-month residence, III regulation.118 This Regulation income conditions, proof of address) and establishes the principle that only access healthcare through PASS while they one Member State is responsible for have no medical coverage. examining an asylum application and defines criteria to determine Pregnant asylum seekers and refugees which State is responsible. If In theory, pregnant women have the same another state is examining the access to free of charge antenatal, delivery

117http://www.cmu.fr/resider-en-france-stable- 120List of the “safe countries”, considered as regulier.php respectful of principles as democracy, rule of law 118 Dublin III Regulation - 2013 and human rights (art. L741 CESEDA), defined by http://eur- the OFPRA lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L http://www.ofpra.gouv.fr/sites/default/files/atoms/fi :2013:180:0031:0059:EN:PDF les/150909_ldu_liste_pos.pdf 119 https://www.ldh-france.org/wp- 121https://www.service- content/uploads/2017/10/CP_Prefectures-Hors-la- public.fr/particuliers/vosdroits/F15376 loi1.pdf

31

FRANCE and postnatal care as nationals and month in mainland France and € 809 in the authorised residents.122 This includes DOMs.123 termination of pregnancy. AME gives access to all healthcare Children of asylum seekers and refugees providers without paying at the point of In theory, children of asylum seekers and service. Costs are fully covered, except for refugees have the same access to healthcare prosthesis (dental, optical, etc.), medically as the children of nationals or authorised assisted reproduction and medicines with residents, as children healthcare is always limited therapeutic value, according to the considered as a priority. therapeutic benefit evaluation system, Service Médical Rendu - SMR 124 , which are Ø They can access mother and child reimbursed at 15%. However, AME health centres ( Protection Maternelle coverage is regularly revised by law, as the et Infantile – PMI ) without any status principle of covering the health costs of requirements and for free. The PMI undocumented migrants is publicly centres offer preventive care, follow- questioned by many political leaders. up and vaccination for babies and children up to six years old. In some The AME is valid for one year. However, areas, however, these centres are the delay in obtaining AME can be several overcrowded and face difficulties months after the request is submitted. The with responding to the needs. validity of the AME begins on the day of submission with a possible retroactivity of Ø In theory, even before starting the 125 asylum process, minors should have 30 days. If the migrant is still access to AME health coverage as undocumented after one year, s/he can soon as they arrive in France. In request a renewal of AME. In theory, practice, their parents lack migrants should submit the request for information and of ten don’t request renewal two months before the AME AME before they have been in the expires. In practice, the renewal takes much country for at least three months, and more than two months and there is no health actually obtaining AME takes several coverage during the gap in between. months. Circular n°2005-407 §1.4 stipulates that an accelerated procedure for the attribution of Undocumented migrants the AME is possible when the health Undocumented migrants benefit from condition of the applicant requires a prompt specific healthcare mechanism: the State treatment, and a GP certifies the need for it. Medical Help - AME ( Aide Médicale d’Etat ). Article L251-1 of the Social Action As undocumented migrants are not allowed and Family Code states that an to work, they have to declare their resources undocumented individual is entitled to (no need of formal proof) and expenses. AME if he/she has been residing illegally in When an undocumented person has France for more than three month and if resources above the threshold, s/he is not his/her resources are lower than € 727 per entitled to any health coverage and must pay the full costs of health services.

122 Article L251-2 of the Social Action and Family 125 Article 44-1 of the decree of 2 September 1954 Code https://www.legifrance.gouv.fr/affichTexte.do?cidT 123https://www.service- exte=JORFTEXT000000492230#LEGIARTI00000 public.fr/particuliers/vosdroits/F3079 6682759 124 The SMR is a criteria used in public health to classify drugs or medical devices according to their therapeutic or diagnostic utility.

32

FRANCE

Moreover, to benefit from AME, Communal Centre for Social Support undocumented migrants must be able to (Centre Communal d’Action Sociale – prove their identity. Some migrants do not CCAS ) of the city where the individual lives possess an adequate identity document (if they fulfil the conditions of the CCAS, (which can be a student card for which are often extremely complicated) or example) 126 and therefore experience by a entitled association. In many areas difficulty in submitting a request. (especially Paris and its suburbs), Furthermore, if a migrant wants to prove organisations face difficulties in responding his/her identity with a birth certificate, said to the level of need, as the CCASs do not document may have to be translated by an always fulfil their role. official translator 127 , which is often expensive and not easily available. In order to overcome these gaps and under the pressure of the ODSE, the circular The residence condition, added to the proof DHOS/DSS/DGAS adopted on 16 March of identity, can create a real barrier to access 2005128 (Article L254-1 of the Social to healthcare for undocumented migrants. Action and Family Code 129 ) created the Those who are unable to prove that they Fund for Vital and Urgent Care ( Fonds pour have been resident in France for more than les soins urgents et vitaux – FSUV ), valid three months are only entitled to hospital only in hospitals. services for care that is deemed urgent (pregnancy, pregnancy termination, etc.). The fund aims to finance the delivery of Moreover, the documents that are accepted essential care to individuals who do not in fulfilment of the residence condition are benefit from AME, i.e. those who do not not the same for all the social security fulfil the three months residence condition agencies in France. In each department, the or cannot prove their identity. Under this local CPAM has its own way of applying urgent care scheme, healthcare is always the regulation and can decide whether to considered as essential care for pregnant accept certain documents. For example, women and children. certificates delivered by non-profit The fund covers: organisations like MdM are recognised as proof of residence by some CPAMs and not Ø Care that cannot be postponed by others. This creates difficult and unequal without threatening the life or access to health coverage. possibly damaging the health of a person An address is also necessary in order to Ø Treatment of infectious diseases apply for AME. However, most Ø Antenatal and postnatal care, undocumented migrants cannot prove their delivery address and must then request either support Ø Pregnancy termination 130 from a relative by using their address (although the conditions for using a Undocumented pregnant women relative’s address are not the same in all departments) or an administrative address. Pregnant women may have access to AME. This can be provided either by the Under this scheme, they may access antenatal, delivery and postnatal care. In

126http://www.ameli.fr/assures/droits-et- 129 Social Action and Family Code , Article 254-1 demarches/par-situation-personnelle/vous-avez-des- http://legifrance.gouv.fr/affichCodeArticle.do?cidT difficultes/l-8217-aide-medicale-de-l-8217-etat/les- exte=LEGITEXT000006074069&idArticle=LEGI conditions-pour-beneficier-de-l-ame.php ARTI000006797164&dateTexte=&categorieLien=c 127Ibid. id 128Circular of 16 March 2005 130 http://www.cmu.fr/soins_urgents.php http://circulaires.legifrance.gouv.fr/pdf/2009/04/cir _18852.pdf

33

FRANCE addition, they can access termination of Children who do not benefit from AME can pregnancy. However, because of the above- go to hospital and have free access to mentioned administrative barriers, it is very healthcare, because care for children is difficult for them to access the AME considered emergency care.134 scheme. Moreover, children can receive This is why the Vital and urgent care vaccinations against all the principal circular 131 ensures that undocumented diseases free of charge.135 In accordance pregnant women who do not benefit from with the general health system, all children AME have access to antenatal, delivery and have access to immunisations at PMI postnatal care and termination of centres. 136 pregnancy, because these health services are always considered to be essential. EU citizens Pursuant to the Directive 2004/38/EC 137 , Children of undocumented migrants destitute EU citizens are considered as In French law, only adults are required to undocumented migrants (no health have an authorisation to stay on the coverage, insufficient financial territory, thus, children are never resources) 138 and they can access AME considered undocumented migrants. under the same conditions as any other undocumented migrant.139 In principle, children of undocumented migrants are entitled to the AME scheme They have to prove three months of upon arrival in France (without the three- residence in France. Moreover, CPAMs month residence condition), even if their must find evidence that they have no health parents are not eligible. The right is granted coverage in their country of origin. In for one year.132 practice, CPAMs ask EU citizens to prove that they do not have health coverage in In practice, several CPAMs wait for the their country of origin, which is an entitlement to AME of their parents (after important administrative barrier.140 Some three months of residence) to affiliate CPAMs also ask EU citizens to request children as assignees, whereas children PUMA first before they can apply for AME, should be affiliated on their own behalf. even if they will clearly not obtain it, They can use the PASS system and invoke 133 because they do not fulfil the conditions. the 2005 Vital and urgent care circular The process for an EU citizen to obtain but access to healthcare differs from one AME is in general quite complicated, as the PASS to another. practice of each CPAM varies and makes it

accueil-des-demandeurs-d-asile/Les-droits-sociaux- 132 Circular of 8 September 2011, des-demandeurs-d-asile http://www.sante.gouv.fr/fichiers/bo/2011/11- 137 Directive 2004/38/EC 10/ste_20110010_0100_0055.pdf http://eur-lex.europa.eu/legal- 133 Op. cit. note 128 content/FR/TXT/?uri=celex%3A32004L0038 134 Op. cit. note 128 138These are conditions to be authorised to reside in 135http://www.ameli.fr/assures/prevention-sante/la- France for inactive individuals. vaccination.php 139Circular of 9 June 2011 , 136 Comité Médical pour les Exilés (COMEDE), http://circulaire.legifrance.gouv.fr/pdf/2011/07/cir_ Migrants/étrangers en situation précaire , 2008, 33406.pdf http://docplayer.fr/5525447-Rapport-2014-du- 140Médecins du Monde 2014, Report on access to comede-introduction-2.html healthcare in France and http://www.medecinsdumonde.org/actualites/public http://www.immigration.interieur.gouv.fr/Asile/L- ations/2015/10/17/observatoire-2014-de-lacces- aux-droits-et-aux-soins-en-france

34

FRANCE difficult for individuals to understand the protection are under the age of majority and rules that apply. unaccompanied. However, since the circular Regrettably, unaccompanied minors are too DSS/2A/DGAS/DHOS, adopted on 7 often faced with distrust and questioning of January 2008 141 , modifying the above- their claim. Even when they are presented mentioned circular of 2005, destitute EU with documentary evidence of their age, the citizens benefit from the FSUV and have authorities often rely on medical age access to emergency care. This circular assessment techniques, such as X-rays of specifies that while EU citizens have the bones and teeth.142 right to move and reside freely within the territory of a member state, they do not have MdM strongly criticises these practices, full freedom to settle and reside in France. considered as imprecise, unethical and Therefore, they can be considered as unreliable. MdM advocates a process of age undocumented migrants regarding assessment based on a multi-disciplinary provisions governing entry and stay on approach, which focuses not on French territory. chronological age exclusively, but rather on the needs of children and young people. In the same way, third country nationals who are authorised residents in one EU MdM is also calling, as the National country face difficulties in accessing Consultative Commission on Human Rights healthcare in another EU country. did in an advice of 26 June 2014, for the prohibition of medical age assessment and Unaccompanied minors for the application of a presumption of minority in the case of those who present Unaccompanied minors in France should themselves as minors. have access to healthcare through the health insurance system in the same way as the children of national or authorised residents Protection of seriously ill do. foreign nationals In this area, French legislation is rather The care of unaccompanied minors falls protective. In accordance with the Code on under Child Protection, which is the Entry and Residence of Foreign Nationals responsibility of the departmental council and Right of Asylum 143 , an ill foreign through child welfare services ( Aide Sociale national can obtain a residence permit if à l’Enfance – ASE ). Children taken into care his/her state of health requires medical by social services can benefit from assistance, which lack could cause him/her accommodation, socio-educational consequences of an exceptional gravity, on measures, counselling, and access to the condition that no treatment of this healthcare and education until they reach condition is available in his/her country. their majority. In order to determine their This additional criterion was introduced, eligibility to such measures, these services despite strong opposition from must assess the minor’s situation through an organisations and some members of the evaluation. This evaluation aims to parliament, by a reform related to determine whether young people seeking immigration, integration and nationality,

141Circular of 7 January 2008 , 143 https://www.legifrance.gouv.fr/affichCode.do;js http://www.sante.gouv.fr/fichiers/bo/2008/08- essionid=BBBD8FB9D375F5A55806266730FB10 02/a0020048.htm E5.tpdila09v_3?idSectionTA=LEGISCTA0000061 142 80199&cidTexte=LEGITEXT000006070158&date http://www.justice.gouv.fr/art_pix/1_RAA_MMNA Texte=20160311 _2016.pdf

35

FRANCE promulgated on 16 June 2011 ( Loi whether the foreigner could be a possible Besson ).144 It does not apply to Algerians, “threat to public order”. who have a specific statute and depend from the 1968 Agreement between France and The final decision belongs to the prefect Algeria, however, in practice, the who has to take into account the medical authorities apply to them the same rules as advice of a doctor from the French Office of for other foreigners. Immigration and Integration (OFII – Office Français de l’Im migration et de Thus, the verification of the existence of l’Intégration ), which depends on the appropriate treatment in the country of Ministry of Interior, pursuant to article 20 return would consequently be sufficient to of the Law on foreigners of 7 March decide that the individual can be sent to 2016.146 his/her home country to be treated. There is nevertheless an exception, in case of This procedure has numbers of flaws in exceptional humanitarian circumstances. practice. Many prefectures require more Furthermore, the ECHR condemns the documents from ill foreigners, than the law 147 expulsion of ill foreigners when they are in specifies, and complicate the procedures , too serious condition to be transported. making access to residency for health reasons long and complicated to obtain. The Law on foreigners of 7 March 2016 contains medical confidentiality is frequently several positive measures, as adding the breached and the prefects use this medical notion of “effectivity ” of the access to information to make their decision.148 treatment in the condition of availability of care in the home country, putting more In 2013, around 6,000 new applications health-related restrictions on expulsion and were accepted and the total amount of allowing both parents of an ill child to people living with a permit to stay due to 149 obtain a residence permit with the medical reasons was around 30,000. possibility to work. According to 1,398 patients followed by some NGOs, the rate of positive decisions Seriously ill foreign nationals can apply for was 85%.150 a temporary, renewable, one-year residence permit for “private and family life”, if they In order to avoid a restrictive and arbitrary have been in France for more than one year interpretation of this ambiguous concept of or a provisional residence permit for care of “absence of appropriate treatment ”, the six months maximum if they have only been Ministry of Health provided clarification in 151 in France for a short time.145 To determine an instruction of 10 November 2011. the type of protection to be granted, the After reiterating the medical ethical prefecture considers administrative criteria obligations for the application procedure, as ordinary residence, and evaluates such as continuity of care and the observance of professional secrecy, the

144Law of 16 June 2011 , 148 Op. cit. note 140 http://www.legifrance.gouv.fr/affichTexte.do?cidTe 149 « La régularisation pour soins des étrangers : xte=JORFTEXT000024191380&categorieLien=id symptômes d’une pathologisation d’un droit de 145http://www.immigration.interieur.gouv.fr/Immigr l’homme », Nicolas Klausser, 2017 ation/Les-etrangers-malades-et-leurs- https://revdh.revues.org/2890#ftn6 accompagnants2 150Comité pour la Santé des Exilés (COMEDE), 146http://solidarites- Rapport COMEDE 2014 , sante.gouv.fr/fichiers/bo/2017/17- http://docplayer.fr/5525447-Rapport-2014-du- 01/ste_20170001_0000_0001.pdf comede-introduction-2.html 147http://www.comede.org/wp- 151Instruction of 10 November 2011 , content/uploads/2017/05/VF2-Brochure-ODSE- http://www.sante.gouv.fr/fichiers/bo/2011/11- mars-2017.pdf 12/ste_20110012_0100_0085.pdf

36

FRANCE instruction specifies the meaning of These facilities are open to all individuals, “absence of appropriate treatment ”. minors and adults. The absence of health coverage or residence permit is not an “Treatment ” is defined as all means obstacle. implemented to treat (drugs, healthcare, follow-up tests, full assessment tests); the If a person is diagnosed with an infectious absence or presence of “ appropriate disease, access to treatment depends on the treatment ” is assessed according to the disease and his/her situation relating to individual’s health (stage of the disease, health coverage: complications) and care services in the country (health infrastructure, medical · HIV: this infection is considered an demography, etc.).152 emergency even if the person has no health coverage. The patient will be Prevention and treatment of treated in hospital and the costs infectious diseases covered by the PASS system or by the FSUV. · Hepatitis B and C : if a person is Sexually Transmitted Infections diagnosed but the disease is not Before 2016, there were two types of active (hepatitis can remain “silent” facilities for the prevention and testing of for several years before starting to sexually transmitted infections. affect the patient’s health), there is usually no access to treatment if

· Free and anonymous testing centres there is no health coverage. Access (Centres de dépistage anonyme et to treatment will then depend on gratuit – CDAG ) for HIV and access to AME or CMU, depending hepatitis, funded by health on the person’s status. The cost of insurance; treatment being very high, if there is

· Information centres for testing and a major obstacle to health coverage diagnosis of sexually transmitted (no identity papers, no address, no infections ( Centres d’information, information on rights to health, etc.), de dépistage et de diagnostic des there will be no possibility for infections sexuellement access to healthcare. transmissibles – CIDDIST ) where testing was carried out for specific Tuberculosis sexually transmitted infections Dedicated facilities for the prevention, With the Social Security Financing Act for testing and treatment of tuberculosis (TB) 2016, these two types of facility were also exist in France: Centres for Fighting merged into one, called Centres for Free Tuberculosis (Centres de Lutte Anti- Information, Testing and Diagnosis of HIV, Tuberculeuse – CLAT ). hepatitis virus and sexually transmitted If a person is diagnosed with TB, even infections ( Centres Gratuits d’Information, without health coverage, his/her treatment de Dépistage et de Diagnostic pour les will be covered by the PASS or the urgent infections par les Virus de care scheme and fully covered, including l’Immunodéficience Humaine (VIH) des hospitalisation. hépatites virales et des infections sexuellement transmissibles – CeGIDD). They are funded by the health insurance.

152AIDES, Observatoire des étrangers malades - http://www.aides.org/sites/default/files/doc/120418 Droit au séjour pour soins , 2012, _Rapport_EMA.pdf

37

FRANCE

A special scheme is provided for exemption from payment in case of emergency care, The situation in Mayotte but it does not always work and definition of emergency care is more restrictive than Discrimination by the healthcare in mainland France. Thus, undocumented migrants, about one third of the population, scheme must pay a fee (€20 for a medical In Mayotte, PUMA, CMU-C and AME do consultation with a GP and up to €658 per not exist. day for hospitalisation in gynaecology 155 ). Until 2005, the entire population had free This is much too expensive in relation to access to healthcare in public healthcare their financial resources (one in five facilities (clinics and hospitals). Then, a inhabitants earns less than €100 per month). specific social security system was However, the order adopted on 31 May implemented, which was only open to 2012156 provides that expenses for minors French citizens and foreign nationals with and unborn babies are fully supported if permission to reside, excluding from health their parents’ resources are less than a protection about a quarter of the population. certain amount, even where there is no This is the case for foreign nationals without emergency.157 This change was a major permission to reside 153 , but also part of the legal advance, which enshrined the population of Mayotte (French people born principle of free access to healthcare in the in Mayotte) who are unable to provide proof public system for minors and pregnant of their marital status or present other women in precarious situations. The documents illegitimately required scheme does not include private GPs’ (including proof of residence and bank consultations, emergency transportation, account details). nursing home care, medical equipment are Children can only be affiliated as not free of charge. dependents of a French citizen residing in It should be noted that this order is not Mayotte or of a foreign national with systematically applied in Mayotte. permission to reside in Mayotte. Children of undocumented migrants or unaccompanied Compliance to law minors do not have access to any form of health protection, except for Mayotte became the outermost region of the unaccompanied minors supported by the European Union on 1 January 2014 after child welfare services since 2013. In 2015, becoming a French department in 2011. Its 75% of minors were not affiliated to social legislation must comply with EU and security.154 national standards. Thus, the CESEDA (Code on Entry and Residence of Foreign Regarding access to healthcare, PASS do Nationals and Right of Asylum) now not provide medical consultations and the applies to Mayotte. However, the circular creating the FSUV is not applicable transposition of these laws in Mayotte is in Mayotte. subject to derogations that continue to

153Order of 20 December 1996 , 155Order of 21 July 2014 , http://www.legifrance.gouv.fr/affichTexte.do?cidTe http://www.gisti.org/IMG/pdf/arrete_ars- xte=LEGITEXT000005622330&dateTexte=200801 mayotte_no182_2014-07-21.pdf 26 156http://www.legifrance.gouv.fr/affichTexte.do?cid 154http://www.defenseurdesdroits.fr/sites/default/fil Texte=JORFTEXT000025943780&fastPos=2&fast es/atoms/files/dde_mayotte_2015_definitif.pdf ReqId=721478700&categorieLien=cid&oldAction= rechTexte 157 This amount is not set by any law.

38

FRANCE deprive foreign nationals of the rights they would be entitled to in mainland France. Pursuant to the programming law no 2017- 256 of 28 February 2017 on real equality for overseas communities and other social and economic matters, the CMU-C should become progressively applicable overseas. However, as of July 2017 it is still not applicable in Mayotte.

39

GERMANY

(GKV). 161 Approximately 85% of the GERMANY population belong to the statutory health insurance scheme (GKV), whereas 15% National Health System have private health insurance (PKV).162

Organisation and funding German The GKV is based on the principle of healthcare system solidarity and the principle of benefits in kind, meaning that services do not depend German laws regarding access to healthcare on income or contribution and that the are made at the national level. However, as insured receive benefits without up-front a federal country, responsibilities for the payments on their part. Insurance payments healthcare system in Germany are shared are based on a percentage of income and between the Länder (federal states), the shared between employees and employers. federal government and civil society organisations 158 (i.e. important Since 2009, the government has set a competencies are legally delegated to uniform contribution rate to the GKV. As of membership -based, self -regulated 2016, employees or pensioners with health organisations of payers and providers) 159 , coverage contribute 7.3% of their gross thus combining vertical implementation of incomes, while the employer or pension policies with strong horizontal decision- fund adds another 7.3%.163 In addition, making.160 supplementary premiums of between 0.3% and 1.9% are collected from the employees’ There are two insurance systems: statutory gross salaries. Since 2011, the employers’ health insurance (Gesetzliche share has been fixed at 7.3%, so that health Krankenversicherung – GKV) and private insurance fund members will have to fund health insurance (Private future expenditure increases in the Krankenversicherung – PKV). Since 2009, healthcare sector solely via their it is compulsory for all German citizens and supplementary premiums of the long-term residents to have health employees.164 insurance. Employees earning less than €57,600 per year (as of 2017), are Within the GKV, this contribution also mandatorily covered by the statutory health covers dependents i.e. non-earning spouses insurance scheme (GKV). Anyone earning and children.165 more than this opt-out threshold can choose to be covered by private health insurance There are 113 competing, not-for-profit (PKV) or by statutory health insurance statutory health insurance funds

158For instance, there are “Kassenärztliche Green and Benedict Irvine, Vereinigung” (represents the interests of http://www.civitas.org.uk/nhs/download/germany.p approximately 24.000 registered doctors) or df “Bundesärztekammer” (umbrella organisation that 161 Busse R, Blümel M., Germany: health system represents political interests of almost half a million review . Health Systems in Transition, 2014, p. 121 doctors) or “Deutsche Patientenvereinigung” http://www.euro.who.int/__data/assets/pdf_file/000 (organisation for patients). 8/255932/HiT-Germany.pdf?ua=1 159 R. Busse and J. Wasem, “The German Health 162 The Commonwealth Fund, 2015 International Care System – Organisation, Financing, Reforms, Profiles of health Care Systems , January 2016 Challenges…” European Observatory on Health http://www.commonwealthfund.org/~/media/files/p Systems and Policies , Brussels, 2013. ublications/fund- https://www.mig.tuberlin.de/fileadmin/a38331600/ report/2016/jan/1857_mossialos_intl_profiles_2015 2013.lectures/Brussels_2013.02.13.rb_GermanyHe _v7.pdf althCareSystem-FINAL.pdf 163 Op. cit. note 162 160 Civitas, Health care Systems: Germany, updated 164 Op. cit. note 161, p. 253 by Emily Clarke (2012) and Elliot Bidgood (January 165 Op. cit. note 162, p. 69 2013), Based on the 2001 Civitas Report by David

40

GERMANY

(Krankenkassen). Citizens and long-term Ø Dental care; residents choose to which sickness fund Ø Optometry; they want to belong. Ø Physiotherapy; Ø Prescription drugs; In the case of the PKV, contributions Ø Medical aids; depend not on income but on the person’s Ø Rehabilitation; health status, age and gender. Since the Ø Hospice and palliative care; 2009 reforms, however, PKV private health Ø Sick leave compensation. insurance companies are required to offer a basic rate that corresponds to the services Members of the GKV do not have to pay for offered by the GKV statutory health medical consultations, as health providers insurance. are directly reimbursed by the health insurance funds. Small out-of-pocket- Insurance of destitute nationals depends on payments must however be made for other their individual situations. Those with medical services such as physiotherapy or health coverage must pay the compulsory specific dental care. insurance ( Pflichtversicherung ). This costs a minimum of €135 per month, depending Some health services, such as medical on the individual’s income. If they receive cosmetic procedures or acupuncture, have welfare benefit, then the social welfare been excluded from the statutory insurance office ( Sozialamt ) normally pays. coverage scope since the Federal Joint Committee ( Gemeinsamer However, if the person has had a “gap” in Bundesausschuss )167 , as they go beyond his/her insurance payments and has to repay what is defined by law as sufficient, his/her debts retrospectively, the social appropriate and economic patient care. welfare office does not cover this. This is These “Individual Health Services” why in many cases the debt keeps the (Individuelle Gesundheitsleistungen - IGel) person from having full coverage (in such have to be fully payed for and are usually cases the insurance only covers emergency not reimbursed.168 bills). For medication, patients have to pay 10% of MdM DE teams treat many German citizens the cost of the medication. This co-payment at MdM’s programmes. Most of them were amounts to at least €5 and at most €10 per privately insured before the reform but prescription.169 cannot afford the monthly fees anymore. Some of them also come because they were Measures have also been put in place to not insured prior to when health insurance prevent extreme financial burden. Annual became mandatory and cannot pay their expenditure on co-payments for any debts. German citizen must not exceed 2% of gross annual household income. That limit Accessing Germany healthcare system was established to prevent unreasonable Statutory health insurance (GKV) covers 166 : costs for those on low incomes. The 2% calculation is based on the household Ø Preventive services, inpatient and income, from which an allowance for each outpatient hospital care; household member is subtracted. In Ø Physician services; addition, people with chronic illnesses or Ø Mental healthcare; disabilities do not have to pay more than 1%

166 Ibid. 168 http://www.kbv.de/html/igel.php 167 Guidelines §92 of the Social Code, Book V 169 Social Code, Book V, Statutory Health Insurance, https://www.gesetze-im- Section 61 internet.de/sgb_5/__92.html http://www.gesetze-im-internet.de/sgb_5/

41

GERMANY of gross annual household income. Persons The coverage also depends on each federal receiving social aid ( Sozialhilfe ) pay a state’s policies. 173 maximum of €49.08 (if chronically ill) or €98.16 (if not) per year. Children under 18 Medically necessary care for chronic are exempted of any co-payment.170 diseases is only provided after special approval. This includes psychotherapy for Access to healthcare for asylum seekers suffering from PTSD (post- migrants traumatic stress disorder) (§6 AsylbLG). Translation is also covered for Asylum seekers and refugees psychotherapy. The Asylum Seekers Benefits Act 171 After 15 months of having received benefits (Asylbewerberleistungsgesetz – AsylbLG ) under the Asylum Seekers Benefits Act regulates the entitlement to state subsidies asylum seekers and refugees are entitled to for medical care of refugees, asylum welfare benefits and they may have access seekers, people who hold a certain residence to healthcare under the same conditions that permit for humanitarian reasons, people apply to German citizens. However, a with a “temporary tolerated stay” reduction in benefits may be applied for (Duldung ) and for those who are obliged to more than 15 months (i.e. without any time leave. limit) to people who have “ abused the law to affect the duration of their stay”.174 Unlike in most European countries, asylum seekers and refugees living in Germany do In emergency situations, asylum seekers not have the same access to healthcare as and refugees can go directly to the nationals. According to Section 2 of the emergency department for care. For non- AsylbLG, during their first 15 months on emergency situations, asylum seekers in the German territory, they are only entitled many federal states and municipalities must to basic healthcare services determined in first request a health voucher Section 4 of the AsylbLG and Section 19 of (Krankenschein ) or health insurance the Law on Infectious diseases certificate from the municipal social (Infektionsschutzgesetz ).172 services department in order to gain access to healthcare. This document allows them The basic services covered are: free access to the medical services they are entitled to under the Asylum Seekers Act Ø treatment for severe illnesses or (AsylbLG) 175 ; the care provider is then acute pain and everything necessary reimbursed directly. for curing, improving or relieving the illnesses and their consequences, The municipal departments, which do not including dental care have medical expertise, are in charge of Ø antenatal and postnatal care delivering the health vouchers. This causes Ø vaccinations a heterogeneous application of the law Ø preventive medical tests and throughout the country, as municipalities anonymous counselling and may interpret it in a more or less restrictive screening for infectious and sexually transmitted diseases

170 Op. cit. note 162 173http://www.hspm.org/countries/germany2808201 171Asylum Seekers benefit Act – 1993 4/livinghit.aspx?Section=5.14%20Health%20servic http://www.gesetze-im- es%20for%20specific%20populations&Type=Secti internet.de/bundesrecht/asylblg/gesamt.pdf on 172Law on Infectious diseases – 2000 174http://www.asylumineurope.org/reports/country/ http://www.gesetze-im- germany/reception-conditions/health-care internet.de/bundesrecht/ifsg/gesamt.pdf 175 Op. cit. note 171

42

GERMANY way and thus may not issue health vouchers and nursing help and support”, including under the same conditions. midwifery assistance. Furthermore, vaccination and “necessary preventive In contrast, some federal states (e.g. medical check-ups” must be provided. Bremen, Hamburg, Brandenburg and Therefore, they have the same access to Berlin) have agreements with statutory health coverage for antenatal and postnatal health insurance funds and issue health care as German citizens covered by insurance cards to asylum seekers. While statutory health insurance. the benefits are the same, this saves asylum seekers from having to request a health Children of asylum seekers and refugees voucher every time they need access to care. Children of asylum seekers and refugees are It is also much easier for health providers. subject to the same system as adults. Other federal states are discussing the However, the law stipulates that children introduction of this model in their own 176 can receive other care meeting their specific schemes. needs (Section 6 AsylbLG), although this In most cities in Germany, a health voucher provision does not specify the particular is valid for consultations with primary care treatments that children may receive. As physicians for three months. However, if discussed above, Section 4 AsylbLG the general practitioner refers an asylum stipulates that asylum seekers and refugees seeker or a refugee to a specialist, another who have been in Germany for less than 15 health voucher has to be requested. months are entitled to vaccinations from the first day they arrive.177 However, If the doctor prescribes medication, the vaccinations (Section 4.3 AsylbLG) are not prescription states that the patient is exempt compulsory in Germany, but merely from co-payments. When a chronic illness recommended 178 , with the exception of is diagnosed, in some municipalities a children at the time they enter childcare municipal public health department institutions, who have to be vaccinated. The physician must confirm the diagnosis and vaccines recommended by the WHO are the need for treatment. free of charge. With the new Asylpaket II in vigor since It should be noted that, according to a March 2016, Germany has been UNICEF (United Nations International implementing a stricter asylum system. Children's Emergency Fund) report Asylum seekers who are granted subsidiary published on 9 September 2014, children of protection (and not refugee status) are refugees in Germany do not have a standard denied their right to family reunification for of living equal to their German peers, due to two years. discrimination in health and education services.179 The study, “Children first and Pregnant asylum seekers and refugees foremost ” states that, despite the daily The Asylum Seekers Benefits Act contains difficulties they encounter, children of a special provision for pregnant women and refugees have inadequate governmental for women who have recently given birth in support, which goes against the principles its Section 4. They are entitled to “me dical

176 Op. cit. note 174 179 Z. Dogusan, “Refugee children discriminated 177 List of vaccinations against in Germany, UNICEF says”, Daily Sabah , 10 http://www.bmg.bund.de/themen/praevention/frueh September 2014 erkennung-und-vorsorge/impfungen.html http://www.dailysabah.com/europe/2014/09/10/refu 178There are strong reservations against compulsory gee-children-discriminated-against-in-germany- public health measures in Germany, due to historical unicef-says reasons

43

GERMANY of the United Nations Con vention on th e residence permit and whose expulsion Rights o f the Child (CRC).180 has not been suspended; Ø a breach of a geographical restriction; Undocumented migrants Ø any other grounds for expulsion According to the Asylum Seekers Benefits Act of 1 November 1993 (AsylbLG) 181 , This means that social service departments undocumented migrants are afforded by law have an obligation to report any the same access to health services as asylum undocumented migrants encountered in the seekers who have been in Germany for less course of their work to the immigration than 15 months.182 authorities. Thus, undocumented migrants, de facto, do not have access to financial These health services are less coverage of non-emergency healthcare. comprehensive than those provided by the social security scheme, as they only cover: In cases of emergency treatment, the hospital can request reimbursement from Ø emergency care the social service department. Hospital Ø treatment for acute illnesses and administrative and medical staff are bound severe pain; by medical confidentiality, as are social Ø antenatal and postnatal care; services departments, if they obtain Ø recommended immunisations; information on the status of an Ø preventive medical tests; and undocumented migrant from members of Ø anonymous counselling and screening the medical personnel. for infectious and sexually transmitted diseases Nevertheless, in practice, the Ø HIV/AIDS treatment, if the patient reimbursement request process is fairly cannot afford it complicated because the social services department has to verify that the person is indeed in need, and to do that, it needs to In order to access financial coverage of non- contact the immigration department. emergency care and treatment, a certificate (Krankenschein) needs to be obtained from As a result, undocumented migrants often the social service department. choose neither to seek treatment nor to bring their children for treatment, even in severe According to the Residence Act of 30 July cases, for fear of being reported and 2004 (Aufenthaltsgesetz – AufenthG ), expelled from the country. Section 87(2) 1 and 2, however, “ Public bodies [with the exception of schools and Undocumented pregnant women other educational and care establishments According to the law, undocumented for young people] shall notify the competent pregnant women have access to healthcare foreign nationals’ registration authority services in the same way as German women forthwith, if, in discharging their duties, covered by statutory health insurance. In they obtain knowledge of 183 : practice, however, cost-free healthcare services are provided to pregnant women Ø the whereabouts of a foreign national who does not possess the required

180 Ibid. ocs/Entscheidungen/DE/2012/07/ls20120718_1bvl0 181 Op. cit. note 171 01010.html 182 §II, art.1 Decision of the Germany’s Federal 183 Residence Act of 30 July 2004 , Section 87 Constitutional Court 18 July 2012 http://www.gesetze-im- https://www.bundesverfassungsgericht.de/SharedD internet.de/englisch_aufenthg/englisch_aufenthg.ht ml#p1120

44

GERMANY only in the case of emergency care (see This section specifies that termination of above). pregnancy is not punishable if all of the following conditions are met: A “temporary tolerated stay” is granted for pregnant women six weeks before and eight Ø the woman requests the procedure; weeks after delivery. Within this time, Ø the woman presents a medical pregnant women will not be expelled and certificate proving that she went to an can thus access non-emergency healthcare approved consultation centre at least without cost. three days earlier; Ø the procedure is performed by a However, for the first six months of their doctor; and pregnancy, undocumented women risk Ø the procedure is performed within 12 expulsion when applying for cost weeks of conception reimbursement so they often do not get appropriate antenatal care (starting at 14 th week at the latest). In case of rape, which has to be certified by a medical professional, consultation is not Children of undocumented migrants obligatory, termination is possible after the The children of undocumented migrants are 12 th week and the cost of the termination is concerned by the provisions of the Asylum covered by the health insurance.186 Seekers Benefit Act 184 , so they should have the same access to healthcare as the children A termination of pregnancy beyond 12 of asylum seekers. In theory, immunisations weeks is also possible if it is medically for children of undocumented migrants indicated, that is, if the woman’s physical or must be provided free of charge. However, mental health renders it necessary and the due to the duty to report, undocumented risk cannot be dealt with by other means. families are hindered from seeking non- This provision also applies in cases where emergency healthcare. there is a risk of serious congenital malformation. In medically indicated cases, In practice, most children of undocumented the cost of the termination is covered by the migrants do not have access to health insurance. immunisation free of charge. They face paying the full costs of the medical In case of termination of pregnancy without consultation (around €45) and the costs of criminal or medical indication, the cost of the vaccine (€70 per vaccine). termination of pregnancy is borne by the patient and is not reimbursed. A medical Termination of pregnancy abortion costs around €350. The Section 218a of the Criminal Code 185 , examination before the termination and treatment of complications are however, which resulted from the adoption of the 21 187 August 1995 law on antenatal assistance covered by the health insurer. and aid to families, indicates the conditions For women whose income minus rent and under which termination of pregnancy is not children’s allowance is below €1,036 per considered illegal. month pregnancy termination is fully covered. According to the law, female asylum seekers and undocumented women

184Op. cit. note 171 186http://www.familienplanung.de/beratung/schwan 185 Criminal Code (last amended on July 2017) gerschaftsabbruch/rechtslage-und-indikationen/ s218a 187 Ibid. http://www.gesetze-im- internet.de/stgb/__218a.html

45

GERMANY are also entitled to coverage. However, according to the 12 th book of the German access remains very difficult for Social Security Code.191 This can mean, undocumented women, due to the need for depending on the circumstances, that the a health voucher and the risk of being costs for an urgent operation might be reported, as discussed above. reimbursed by social services.

Indeed, the experience of MdM DE teams A new law on access to social welfare has shown that it is very difficult for female (GrSiAuslG), in vigour since the asylum seekers and undocumented women beginning of 2017, has reduced the to obtain reimbursement for termination of rights of some EU citizens legally pregnancy. residing in Germany to access social services such as healthcare. It concerns EU citizens people coming from EU membe r states Access to health insurance and welfare who are unemployed, without sufficient benefits for EU citizens depends on their means of existence or acquiring working situation and on the reason of their residence permit through their children, stay in Germany. Job seekers and and it applies for the first five years of individuals who are not capable of their stay in Germany. People affected employment (for health reasons or on the by this new law may be entitled to basis of immigration law) are not entitled to limited social benefits and healthcare welfare benefits, pursuant to Section 23 of services for a period of one month, and th the 12 book of the German Social Security only once every two years, in order to Code.188 They can obtain health coverage facilitate their return to their own through private insurance if they can afford country. the contributions. In the case C-299/14 Vestische Arbeit EU pregnant women Jobcenter Kreis Recklinghausen v Jovanna Healthcare related to pregnancy is not seen García-Nieto and Others, the Court of as emergency care. Therefore, uninsured Justice of the European Union confirmed pregnant EU citizens are advised by the that “ a Member State may exclude nationals social welfare office to go back to their of other Member States from certain social home country. Sometimes, the Ministry of benefits during their first three months of 189 Labour and Social Affairs covers the costs residence ”. of the travel. Pursuant to the 2004 European Directive Unaccompanied minors 2004/38/EC 190 , after three months of residence in Germany, if an EU citizen has Unaccompanied minors’ access to insufficient funds and no insurance to cover healthcare is foreseen, in parallel with their his/her healthcare, s/he loses his/her right of care requirements based on their residence residence. status and their care needs due to the absence of anyone with parental In any case, EU citizens are entitled to responsibility for them.192 “If assistance is assistance in case of emergencies,

188 Social Security Code, Book XII https://curia.europa.eu/jcms/upload/docs/applicatio http://www.gesetze-im- n/pdf/2016-02/cp160018en.pdf internet.de/bundesrecht/sgb_12/gesamt.pdf 190 Directive 2004/38/EC 189 Case C-299/14 Vestische Arbeit Jobcenter Kreis 191 Op. cit. note 188 Recklinghausen v Jovanna García-Nieto and Others , 192 A. Muller, “Unaccompanied Minors in Germany 25 February 2016 Focus-Study by the German National Contact Point for the European Migration Network (EMN)”,

46

GERMANY granted in accordance with Sections 33 to tolerated stay (Duldung) if his/her 35 or Section 35a subsection 2 Nos. 3 or 4 continued presence in Germany is [Social Security Code Book VIII 193 ], health necessary on urgent humanitarian or benefits must also be granted as specified in personal grounds (including medical Sections 47 to 52 of the 12 th book of the grounds) or due to substantial public German Social Security Code ”.194 interests. As a result, the expulsion of a foreign national must be suspended for as The health benefits granted shall meet all of long as expulsion is impossible in fact or in the requirements in each individual case. law. However, no residence permit is They have to cover any additional charges granted. Since March 2016 with the and contributions (Section 40 Social Asylpaket II, stricter regulations were 195 Security Code Book VIII ). This also passed for proving that a medical condition covers any need for psychological care, makes an expulsion impossible (AufenthG 196 including translation fees. §60a Section 2c and 2d), thus making it easier for German authorities to expel Unaccompanied minors recognised as seriously ill foreigners. asylum seekers, who have been granted subsidiary protection or refugee status and In the case of chronic diseases, the foreign those for whom a prohibition of expulsion nationals’ registration office has been established are entitled to health (Ausländerbehörde ) may grant a residence benefits based on the sections of the Social permit according to Section 25.5 AufenthG Security Code, commensurate with their if a specialist doctor declares in a detailed situation, even if it has been established that certificate that a person is unable to travel they do not need assistance from the Youth or cannot stop treatment in Germany. The 197 Welfare Office. temporary permit to reside ceases to apply once the patient is fit to travel again. The situation is different in respect of unaccompanied minors whose expulsion In addition, if the patient is considered able has been suspended or who have been to travel despite their illness, but the granted permission to stay for the duration treatment required by their condition is not of the asylum procedure and who have not possible anywhere in their country of been granted any assistance by the Youth origin, a residence permit for humanitarian Welfare Office. They are merely entitled to reasons can be issued, in accordance with medical care under the Asylum Seekers Section 25.3 AufenthG and Section 60.7 198 Benefits Act. Therefore, they have access AufenthG. The Federal Office for to health packages as quoted above. Migration and Refugees ( Bundesamt für Migration und Flüchtlinge ) checks this Protection of seriously ill residence permit in the framework of the foreign nationals asylum procedure or readmission procedure of a previous asylum request. According to Section 60a.2 of the 199 Residence Act (AufenthG) , a foreign To obtain a residence permit for national may be granted a temporary humanitarian reasons, the applicant must

Federal Office for Migration and Refugees , 194 Op. cit. Note 188 Nuremberg, 2014, 195 Op. cit. note 193 https://www.bamf.de/SharedDocs/Anlagen/EN/Pub 196 Op. cit. note 192 likationen/EMN/Studien/wp60-emn- 197 Directive 2004/38/EC minderjaehrige-in- 198 Op. cit. note 192 deutschland.pdf?__blob=publicationFile 199 Op. cit. note 183 193 Social Security Code, Book VIII http://www.gesetze-im- internet.de/bundesrecht/sgb_8/gesamt.pdf

47

GERMANY demonstrate to the relevant authorities that special counselling services for people with there is a serious risk to his/her health in STIs ( Beratungsstelle für sexuell his/her country of origin. Data on the übertragbare Krankheiten ), accessible to national health system and the person’s all, regardless of legal status. These services economic and social situation must be were launched many years ago, at first for presented. sex workers and drug users. They offer anonymous services, generally testing and Finally, certain seriously ill foreigners can counselling and sometimes consultation obtain a residence permit “on hardship with a doctor. grounds”. However, this request concerns extremely specific situations, examined on Access to HIV and hepatitis treatment, a case-by-case basis and does not include however, is far from being accessible to medical grounds. It applies to people who, undocumented migrants in practice, as in theory, cannot stay in Germany, but who patients are asked to apply for the voucher. are granted a residence permit for special reasons, in accordance with Section 23 of the Residence Act.200 The evolution of asylum law in 2016 201 , which foresees a faster asylum procedure of about three weeks, makes it extremely difficult for asylum seekers to present this information in time. Several countries have been classified as “safe countries” 202 , increasing the number of asylum seekers affected by the fast asylum procedure.

Prevention and treatment of infectious diseases According to the Section 19 of the law on infectious diseases 203 , everyone, including undocumented migrants is entitled to counselling and testing for transmissible diseases and to outpatient care (for STIs, TB, hepatitis, etc.). The law also provides for free HIV/AIDS treatment if the patient cannot bear the costs. However, the duty to report prevents effective access to care and, in practice, only those with temporary residence permits have access. Yet, in most large German cities, such as Cologne or Munich, the authorities set up

200 Op. cit. note 183 203Law on Preventing and Combating infectious 201http://www.bgbl.de/xaver/bgbl/start.xav?startbk= diseases in humans of 20 July 2000 (Protection Bundesanzeiger_BGBl&jumpTo=bgbl116s0390.pd against Infection Act) , http://www.gesetze-im- f internet.de/ifsg/__19.html 202http://www.fluechtlingsinfo- berlin.de/fr/pdf/1808039_GE_Maghreb_sicher.pdf

48

GREECE

GREECE Organisation and funding of Greek healthcare system National Health System The Greek healthcare system ( Ethniko Systima Ygeias – ESY ) comprises elements 209 Constitutional basis from both the public and private sectors . In relation to the public sector, elements of Health is enshrined in the Greek the Bismarck and Beveridge models Constitution as a social right. Article 21 of coexist.210 the Constitution of Greece of 1975 establishes that, “ the State shall care for the The Greek public healthcare system is health of citizens and shall adopt special financed by a mix of public and private measures for the protection of youth, old resources. Public statutory funding is based age, disability and for the relief of the on social insurance. The primary source of needy ”.204 revenue for the social insurance funds is constituted by the contributions of Historical background employees and employers (including The founding law of the Greek health contributions by the State as an 211 system (Law 1397/1983) 205 was passed in employer). The State budget, via direct September 1983 and to date is considered to and indirect tax revenues, has to cover be the most significant attempt to make a administration expenditures, funding health radical change in the health sector, which centres and rural surgeries, providing would gradually lead to a comprehensive subsidies to public hospitals and insurance public healthcare system.206 This law can funds, investing in capital stock and funding 212 be characterised as the foundation of the health education. 207 Greek healthcare system. The private sector includes profit-making The philosophy of the law that introduced hospitals, diagnostic centres and the notion of the National Health System in independent practices, financed mainly its Article 1 was based on the principle that from out-of-pocket payments and, to a health is a social good and it should be lesser extent, by private health insurance. provided free of charge at the point of delivery by the state equitably for everyone, Recent reforms of the healthcare system regardless of social and economic status.208 In 2014, the Greek Parliament adopted a According to its provisions, there should be primary healthcare law (Law 4238/14 213 ), universal coverage, equal access to health based on the core values of the Declaration services and the State should be fully of Alma-Ata, to ensure better health of the responsible for the provision of services to Greek people.214 With this law, Greece the population. intended to build a comprehensive and

204Constitution of Greece of 1975 (last amendment 209 Ibid. of 2008), 210 Ibid. http://www.hri.org/MFA/syntagma/artcl25.html 211 Ibid. 205http://www.mednet.gr/eeeaa/pdf/law-1397- 212 Ibid. 1983.pdf 213Law 4238/14 – 2014 206C. Economou,”Greece: Health system review”, http://www.moh.gov.gr/articles/newspaper/nomoth Health Systems in Transition , 2010, vol. 12, No. 7, esia-kanonismoi/3246-nomothesia-hlektronikhs- http://www.euro.who.int/__data/assets/pdf_file/000 ygeias?fdl=8084 4/130729/e94660.pdf 214http://www.euro.who.int/en/countries/greece/new 207 Ibid. s/news/2014/02/greece-launches-new-primary- 208 Ibid. health-care-law

49

GREECE strong nation-wide primary healthcare Pursuant to Article 33 of the 4368/2016 law, service.215 uninsured people and vulnerable social groups now have free access to public In a nutshell, the Greek health system is health facilities, nursing and medical now a mixture of three main components: services.

Ø a tax-based National Health System Section 2 of Article 33 further provides that that is responsible for public hospitals beneficiaries of the rights stated in Section and health centres in rural and urban 1 are: areas; · an extensive network of polyclinics · Uninsured Greek nationals, (previously belonging to insurance authorised residents and their family funds but transferred to EOPYY_ members (spouse and dependent National Organisation for children) Healthcare Services Provision_ · Vulnerable groups, regardless of Εθνικός Οργανισμός Παροχής their legal status: Υπηρεσιών Υγείας ), financed by · children up to 18 years old, insurance contributions paid by · pregnant women, employees and employers. These · chronically ill people, units are mainly located in urban · beneficiaries of a form of areas, covering more than 50% of international protection, the population. Their control and · holders of a residence permit for management were transferred from humanitarian reasons, EOPPY to Health Region · asylum seekers and their families, Administrations (DYPEs) in 2014; · persons accommodated in mental Ø a private insurance system (mainly units, consisting of complementary insurance) and a private delivery · victims of certain crimes,

system which consist of private · people with a disability of 67% or hospitals, diagnostic centres and more,

private doctors, most of whom also · seriously ill people, 219 have contracts with EOPYY.216 · inmates

A major law concerning healthcare was The 4368/2016 law also simplified the adopted on 20 February 2016: Law administrative procedure to obtain 4368/2016217 , implemented by the joint healthcare for Greek nationals, who now ministerial decision n° simply have to present their social security A3(c)/GP/oik.25132/2016 on 4 April number to obtain care; and abolished the 2016218 , opened access to the public health committees that used to determine on a system to uninsured and vulnerable people case-by-case basis who was entitled to and minimised the bureaucratic procedures. healthcare benefits.

215 Ibid. https://www.minedu.gov.gr/publications/docs2016/ 216 N. Polyzos et al., “The introduction of Greek %CE%A6%CE%95%CE%9A.pdf Central Health Fund: Has the reform met its goal in 218Joint ministerial decision implementing law the sector of Primary Health Care or is there a new 4368/2016 model needed?”, BMC Health Services Research , http://www.opengov.gr/yyka/wp- 2014, content/uploads/downloads/2015/04/sxedio-kya- http://www.ncbi.nlm.nih.gov/pmc/articles/PMC425 anasfalistwn.pdf 5662/pdf/12913_2014_Article_583.pdf 219 For the detailed list, see article 3 of the Joint 217 Law 4368/2016 - 2016 Ministerial Decision mentioned above

50

GREECE

In addition of opening rights to free a large number of self-employed health healthcare, the Joint ministerial decision 220 professionals exist.224 implementing law 4368 also introduced a system combining income, social and More specifically, primary healthcare relies clinical criteria to exempt vulnerable social on health centres and private or public groups from pharmaceutical spending. hospitals and outpatient clinics, assigned to Thus, vulnerable groups as chronically ill or the National Health System; EOPYY’s disabled people, and individuals and polyclinics and medical centres; and families whose income does not exceed doctors, nurses, pharmacists, €200 monthly for a single person, €300 for physiotherapists and other self-employed couples or a single person with a dependent health professionals contracted with the 225 member , up to €550 221 for a couple with EOPYY. The current scheme allows free 226 five dependents, are exempted from choice of provider but not of the insurer. medication costs.222 Structurally, there is a shortage of general This reform, allowing thousands of people practitioners (GPs) in Greece compared to to access free healthcare, follows the specialists, there are few nurses per Common ministerial decree no. thousand people and urban areas attract 227 Υ4α/ΓΠ/οικ.48985/2014 of 2014, which most providers and patients. opened access to healthcare for a part of The 2011 reform in the Greek health social uninsured Greek citizens and authorised insurance market resulted in a unified residents. central fund (EOPYY) which The new law 4461/2017 voted in Parliament simultaneously assumed the majority of 228 in July 2017 plans for the setting up of a primary health care provision. new primary care system (including family EOPYY’s primary mission is the provision doctors and local health units) in its article of health services to employed members, 107. This law will be implemented during pensioners and their family dependants the year 2017 and aims at improving the registered with the merged healthcare system through decentralisation. funds. EOPYY unified the majority of Functioning of Greek healthcare system healthcare funds, amongst them the Private Employees’ Fund (IKA), the Public Primary healthcare is a key element of the Employees’ Fund (OPAD), the Farmers’ Greek health system, acting both as a point Fund (OGA) and the Self- of first contact and a gatekeeping employed/Entrepreneurs’ Fund (OAEE) .229 mechanism.223 Primary healthcare in Greece is provided by both National Health As a result, EOPYY covers over 98% of System (ESY) and EOPYY units. However, people with health coverage.230

220 Joint ministerial decision implementing law towards an Upgraded Model of Primary Health Care, 4368/2016 in Greece”, Scientific Research , 2014, 221http://www.moh.gov.gr/articles/health/anaptyksh http://www.scirp.org/journal/PaperDownload.aspx? -monadwn-ygeias/3999-prosbash-twn-anasfalistwn- paperID=44338 sto-dhmosio-systhma-ygeias 227 WHO regional Office for Europe, Profile for 222 Article 6, joint ministerial decision n° health and Well-Being – Greece , 2016 A3(c)/GP/oik.25132/2016 Op. cit. note 220 http://www.euro.who.int/__data/assets/pdf_file/001 223 Ibid. 0/308836/Profile-Health-Well-being- 224 Op. cit. note 216 Greece.pdf?ua=1 225 Op. cit. note 216 228 Ibid. 226 S. Karakolias and N. Polyzos, “The Newly 229 Ibid. Established Unified Healthcare Fund (EOPYY): 230 Op. cit. note 216 Current Situation and Proposed Structural Changes,

51

GREECE

For primary healthcare, EOPYY also insured population’s out -of-pocket undertakes the operational coordination and participation at a time when their total cooperation between (public and private) income has decreased by about 35%.236 healthcare units and health professionals Patients are also required to pay 25% of the constituting the primary healthcare cost of the medicines. 237 network.231 The former government started abolishing Generally, Greek citizens seem to prefer EOPYY’s existing primary care structures inpatient/hospital primary healthcare and services, converting it from a medical services, as they consider them more service supplier with its own doctors and effective.232 In Greece, the system is based dentists into a medical services purchasing on a “free -choice” model, which means body.238 each patient can chose freely any healthcare provider of the National Health System or EOPYY provides free primary care services EOPPY.233 to the insured population in urban areas through its salary-based healthcare Accessing Greece healthcare system professionals (some professionals serve on a contractual basis).239 All Greek citizens are entitled to access healthcare free at the point of delivery. The new fund is obliged to cover all Authorised residents in Greece are entitled citizens, even those who are unemployed or to the same access to healthcare as Greek bankrupt (i.e. providing free access to citizens. Formal access to the free services doctors and medicines, regardless of of the National Health System is dependent insurance status). Those who are without on registered employment and regular health coverage because of the economic status, unless one is part of one of the crisis or other reasons could be covered by groups defined by the 4368/2016 law of the public budget or other sources (e.g. February 2016 (see next section). European Social Fund) on a pre-determined annual basis.240 However, these budgets Although the EOPYY could theoretically targeted only a small part of this population reduce administrative costs and improve group. Thus, a new law was adopted on 20 access to healthcare, a series of immediate February 2016, opening access to measures transferred a portion of costs to healthcare to the uninsured population and the insured population.234 For example, vulnerable individuals (see next section). EOPYY immediately restricted access to many essential health services, such as Termination of pregnancy medical care, glasses, dental care and physiotherapy services.235 Pursuant to the article 304 of the Greek penal code (as amended by the law The new fund has also increased co- 1609/1986), abortion is permitted until the payments for private hospital services, 12 th week of pregnancy, until the 19 th week starting at 20% and reaching 50% for if the pregnancy results from rape, incest or farmers. These measures increased the seduction of a minor 241 , and until the 24 th

231 Op. cit. note 216 236 Ibid. 232 Op. cit. note 216 237https://www.ncbi.nlm.nih.gov/pmc/articles/PMC 233 Op. cit. note 216 4255662/table/Tab1/ 234D. Niakas, “Greek economic crisis and health 238 Op. cit. note 234 reforms : correcting the wrong prescription”, 239 Op. cit. note 234 International Journal of Health Services , Vol 43, No 240 Op. cit. note 234 4, 2013, 241http://www.un.org/esa/population/publications/ab http://www.iatronet.gr/photos/enimerosi/niakas.pdf ortion/doc/greece.doc 235 Ibid.

52

GREECE week, if there is evidence of severe all cases, emergency aid shall be provided abnormality of the foetus. Abortion is also to applicants free of charge ”.243 permitted without a time limit, if there is an inherent risk to the pregnant woman's life or In principle, asylum seekers and refugees the risk of serious and permanent harm to have free access to hospitals and medical her physical or mental health, ascertained care. However, Greece is witnessing an by a corresponding physician. unprecedented increase in the inflow of refugees and migrants to its territory and, Access to healthcare for even though the Greek state and population showed great solidarity with asylum migrants seekers, the ability of the Greek health system to provide adequate healthcare to Asylum seekers and refugees refugees upon entry is severely stretched. According to article 33 Section 2 of the Thus, asylum seekers and refugees still 4368/2016242 law, asylum seekers and encounter difficulties in gaining access to refugees are considered vulnerable groups healthcare. and thus have access to the public healthcare system for free, in the same way Pregnant asylum seekers and refugees as destitute Greek nationals. Pregnant women seeking asylum and pregnant refugees are entitled to free Before the 2016 law, the Common antenatal and postnatal care, delivery care ministerial decision ΚΥΑ Υ4α/48566/05 and abortion.244 provided free healthcare for asylum seekers and refugees. Children of asylum seekers and refugees Moreover, Article 14 of the Presidential Children of asylum seekers have the same Decree 220/2007 on the transposition into access to primary and secondary healthcare, the Greek legislation of Council Directive including immunisation as nationals and 2003/9/EC from January 27, 2003 laying authorised residents. down minimum standards for the reception of asylum seekers, already stated that Undocumented migrants “applicants [for refugee status] shall In Greece, there is a legislation prohibiting receive free of charge the necessary health, care beyond emergency care for adult pharmaceutical and hospital care, on undocumented migrants. However, the new condition that they are uninsured and law 4368/2016 (Article 33, section 2) 245 financially indigent. Such care shall and Article 3 of the joint ministerial include: a. Clinical and medical decision implementing it 246 introduced examinations in public hospitals, health exceptions to this rule, allowing the most centres or regional medical centres. b. vulnerable categories of people to access Medication provided on prescription from a healthcare. medical doctor serving in one of the above institutions and acknowledged by their The new Migration Code, implemented by director. c. Hospital-based care in public Law 4251/2014 247 and repealing Law hospitals, class C of hospitalisation. 2. In

242 Joint ministerial decision implementing law 246 Joint ministerial decision implementing law 4368/2016 4368/2016 243Presidential Decree of 2007 , 247Law 4251/2014 - 2014 http://www.refworld.org/docid/49676abb2.html http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/ 244 Law 4368/2016 100567/120684/F- 245 Law 4368/2016 12516934/GRC100567%20Grk.pdf

53

GREECE

3386/2005, continues to prohibit healthcare considered as one of the vulnerable groups for undocumented migrants.248 eligible for free healthcare independently of the person’s legal status. In particular, Article 26§1 Law 4251/2014 states that “ public services, legal entities of It should be noted that Article 41 of Law public law, local authorities, public utilities 3907/2011250 establishes that and social security organisations shall not undocumented pregnant women may not be provide their services to third-country removed from the territory during their nationals who do not have a passport or any pregnancy and for six months after delivery, other travel document recognised by unless they are considered to pose a risk for international conventions, an entry visa or national security, public order or public a residence permit and, generally, who health. cannot prove that they have entered and reside legally in Greece. Third-country Children of undocumented migrants nationals who are objectively deprived of Children of undocumented migrants are their passport shall be given the right to entitled to free healthcare until they are 18 transact with the agencies referred to years old, as stated in the 4368/2016 law.251 above, simply by showing their residence They are indeed considered as a vulnerable permit ”. group.

In addition, Article 26.2a states that “ the EU citizens arrangements of the previous paragraph shall not apply to hospitals, treatment In accordance with Directive 252 centres and clinics in the case of third- 2004/38/EC of 29 April 2004, after three country minors and nationals who are months of residency in Greece, EU citizens urgently admitted for hospitalisation and with no resources and/or health coverage childbirth, and the social security structures are considered to be undocumented which operate under local authorities ”. migrants. They have the same access to healthcare as undocumented third-country It should be noted that Law 4251/2014 nationals. expressly excludes minors of the Unaccompanied minors prohibition to provide healthcare. According to Article 19 of Directive Concerning the vulnerable groups and their 2003/9/EC, which sets out minimum entitlement to free healthcare, in practice, standards for the reception of asylum vulnerable individuals are not always seekers, unaccompanied minors must be properly identified in the reception centres placed in accommodation centres with and thus may not be able to claim their right special provisions for minors, a condition to free healthcare. incorporated in Article 11-3 of the Directive 2013/33/EC 253 , which provides for a Undocumented pregnant women general ban on detaining minors except Pursuant to the 4368/2016 law 249 , under “exceptional circumstances”. undocumented pregnant women are entitled to free healthcare. Indeed, they are

248 A. Triandafyllidou, “Migration in Greece Recent 250 Law 3907/2011 (last modified by law 4461-2017) Developme nts in 2014”, Hellenic Foundation For http://www.refworld.org/docid/4da6ee7e2.html European and Foreign Policy , 2014, 251 Law 4368/2016 http://www.eliamep.gr/wp- 252 Directive 2013/33/EC - 2013 content/uploads/2014/10/Migration-in-Greece- 253Directive 2013/33/EC - 2013 Recent-Developments-2014_2.pdf http://www.refworld.org/docid/51d29db54.html 249 Law 4368/2016

54

GREECE

For each unaccompanied child, the Public not take into account fluctuations due to Prosecutor for Children or the First Instance ethnic and racial background, nutrition and Prosecutor is informed and acts as the social and economic background, while temporary guardian for the child and maturation may also be affected by any undertakes the necessary actions for the diseases the interested party may have ”.258 appointment of a guardian.254 Given the particular characteristics of unaccompanied Greek law does not prohibit detention of children, as well as their numbers, the unaccompanied minors who enter Greece effective exercise of guardianship functions without valid papers, although it enjoins by temporary or permanent guardians authorities to “avoid it” (Article 13(6) (c) becomes particularly difficult, resulting in PD 114/2010; Article 46 (10)b of law children not being able to enjoy the 4375/2016). Unaccompanied children can protection and rights enshrined in the be detained only until a place in a special 259 Convention of the Rights of the Child.255 facility for minors is found . What is more, Article 32 of Law No 3907/2011 260 Besides, when arriving in Greece, (implementing Directive 2008/115/EC) unaccompanied children are not accurately stipulates that minors and families with or adequately identified, including through minor children should only be detained as a proper age assessment procedures.256 measure of last resort, and only if no other Indeed, although the Common Ministerial adequate but less burdensome measures can Decision KYA 1982/2016 257 provides that be taken, and for the shortest appropriate age assessment should first be performed by period of time. a paediatrician and then, if doubts remain, by a psychologist and social worker. In Yet, the authorities detain unaccompanied most cases, carpal X-ray and dental children, either on arrival or when they are examination, which should be the last found without valid documents, for periods resort, are used to assess the age. of ranging from a few hours to several days or months.261 The reasons for detaining However, age assessment based on physical children for longer or shorter periods appear characteristics is not considered a reliable to be arbitrary.262 The detention of children method, and can only produce an inaccurate is also caused by the fact that the large estimation of the minority of the applicant. influx of asylum seekers to Greece has As stated in the Médecins du Monde overwhelmed existing centres. Greece’s submission before the UN Human Rights Committee, “ the measurements do

254 Article 19 of Presidential Decree 220/2007 259http://www.asylumineurope.org/reports/country/ http://www.refworld.org/docid/49676abb2.html greece/detention-asylum-seekers/legal-framework- 255 detention/detention- United Nations High Commissioner for Refugees vulnerable#sthash.iSUsTK8H.dpuf Greece, Current Issues of Refugee Protection in 260 Law 3907/2011 Greece , July 2013, https://www.e-nomothesia.gr/kat-allodapoi/n-3907- https://www.unhcr.gr/fileadmin/Greece/News/2013/ 2011.html PCjuly/Greece_Positions_July_2013_EN.pdf 261 Platform for International Cooperation on 256 Ibid. Undocumented Migrants (PICUM), 257 Ministerial Decision KYA 1982/2016 – 2016 Recommendations to the European Union to http://asylo.gov.gr/wp- Urgently Address Criminalisation and Violence content/uploads/2016/02/%CE%91%CE%9D%CE Against Migrants in Greece, Brussels, 2014, %97%CE%9B%CE%99%CE%9A%CE%9F%CE http://picum.org/picum.org/uploads/publication/Rec %A4%CE%97%CE%A4%CE%91.pdf ommendations%20to%20address%20criminalisatio 258 n%20and%20violence%20against%20migrants%20 http://tbinternet.ohchr.org/Treaties/CCPR/Shared% in%20Greece_Reprint%20May%202014_2.pdf 20Documents/GRC/INT_CCPR_NGS_GRC_2723 262 Ibid. 6_E.pdf

55

GREECE

Reception capacity for children is and families” and recommends the Greek insufficient: at national level, there are government to “u rgently consider 1,294 places in special centres for alternatives to detention for all migrants, unaccompanied minors and 1,013 and especially unaccompanied minors and unaccompanied children on waiting lists for families with children [and to] develop a shelter (including 173 in reception and substantial and effective guardianship identification centres and 61 in protective system ”. 268 custody) as of 15 May 2017.263 Protection of seriously ill There is no institutionalised procedure for determining the best interests of the child, a foreign nationals guiding principle of the protection of Seriously ill foreign nationals are entitled to children according to international free healthcare in public facilities, standards and Greece’s obligations as a independently of their legal status pursuant signatory to the CRC (Convention on the to article 33 of the 4368/2016 law.269 Rights of the Child).264 As a result of Indeed, they are considered as particularly existing shortcomings in the Greek child vulnerable. protection system, unaccompanied minors remain in administrative detention, often for Pursuant to Article 19A of Law 4251/2014, a long time, in contravention of applicable persons following an approved legal national and international law.265 therapeutic mental dependency program, as demonstrated by a written confirmation What is more, unaccompanied children are from the Director of the programme can often detained in unsanitary and degrading obtain a residence permit for one year, conditions in overcrowded spaces. Most of renewable up to two years. the cells, children are detained in, are dirty, bug-infested and do not include proper Prevention and treatment of beds.266 infectious diseases Despite prohibitions in international and Detention on public health grounds Greek law, some of the minors, particularly when there is a doubt concerning their age, Article 76 of Law 3386/2005, as amended share their cell with adults, which puts them by Law 4075 of April 2012 270 (remaining in in danger of physical and sexual abuse.267 force pursuant to article 139 (2) of Law 4251/2014) provides for the detention and In 2016, the UN Special Rapporteur on the expulsion of migrants and asylum seekers human rights of migrants, after his visit to on public health grounds. The law permits Greece, regrets “the Greek government’s the detention for up to 18 months of a policy of increasing the use of detention of migrant or asylum seeker who represents a persons irregularly entering the Greek danger to public health.271 in order to territory, including unaccompanied children proceed with the expulsion: if they are

263 EKKA, National Centre for Social Solidarity, ayNews.aspx?NewsID=19972&LangID=E#sthash. with support from Unicef U tAn6Vjd.dpuf http://www.ekka.org.gr/files/aglika15052017.pdf 269 Law 4368/2016 264 Op. cit. note 255 270Law 3386/2005 (pursuant to article 139(2) of the 265 Op. cit. note 255 law 4251/2014, articles 76, 77, 78, 80, 81, 82, 83 and 266 Human Rights Watch, “Why are yo u keeping me 89 (paragraphs 1-3) of the Law 3386/2005 remain here” Unaccompanied Children detained in Greece , applicable) 8 September 2016 http://www.refworld.org/docid/4c5270962.html 267 Ibid. 271http://www.globaldetentionproject.org/countries/ 268 europe/greece http://www.ohchr.org/EN/NewsEvents/Pages/Displ

56

GREECE suffering from an infectious disease; if they HIV tests on citizens with the help of belong to a group vulnerable to infectious security forces. diseases (with assessment permissible on the basis of country of origin); if they are Several women were detained during the intravenous drug users or sex workers; or if election campaign in 2012. They were they live in conditions that do not meet arrested and then forced to undergo HIV minimum standards of hygiene.272 MdM screening and were detained for several EL team reports that in some cases the months merely because they were HIV decision was taken exclusively by Police positive. officers. It is thus a positive development that the HIV testing and treatment Greek authorities have decided to repeal this measure, which violated human rights Since the Circular Υ4α/οικ 93443/11 of 18 and affected human dignity. August 2011 273 has been adopted, HIV testing and treatment are free for all people living in Greece, regardless of their legal status and health coverage. Thus, it includes Greek citizens without health coverage and undocumented migrants. However, HIV treatment is not always effectively available and patients have to endure periods of interruption of this essential treatment. Indeed, because of the economic crisis, hospitals in Greece are in financial difficulty and some of them do not have sufficient budget to buy all necessary medicine, which results in drug shortages. Repeal of measure 39A of the Health Act A Ministerial Decision published in the Government Gazette on 17 April 2015 274 repealed the restoration of measure 39A of the Health Act. This law was implemented by the Minister of Health Andreas Loverdos and was then repealed in 2013 by the Minister of Health Fotini Skopouli (of Democratic Left) before being reactivated by the Minister of Health Adonis Georgiadis (far right). Decree 39A has been the cause of hundreds of police operations since 2012, mainly targeting drug users and sex workers. It allowed the authorities to conduct forced

272 Op. cit. note 255 See Circular Υ4α/οικ 45610 of 2012 273Circular Υ4α/οικ 93443/11 – Clarifications on https://www.synigoros.gr/resources/docs/egkyklios access to the country's medical and nursing system 2.pdf to foreigners and uninsured persons 274http://omniatv.com/images/easyblog_images/62/f ek-katarghsh-39A.pdf

57

IRELAND

The HSE is divided into four administrative IRELAND regions (HSE Dublin Mid-Leinster, HSE Dublin North-East, HSE South and HSE National Health System West) and manages the delivery of the entire health service as a single national Basis, Organisation and funding of Irish entity.280 healthcare system The HSE organisational structure is divided Basis into three main areas: Health and Personal The Irish Constitution or legislation does Social Services, Support Services and not contain any express recognition of Reform and Innovation. Health and health as a human right. Personal Social Services is further divided into three service delivery units: However, some judicial statements suggest that there is an un-enumerated right to Ø National Hospitals Office which health protected by the Constitution. In the manages acute hospital and 275 ambulance services case of Heeney vs Dublin Corporati on , the Irish Supreme Court recognised that Ø Primary, Community and “there is a hierarchy of constitutional rights Continuing Care which delivers and at the top of the list is the right to life, health and personal social services 276 in the community and other settings followed by the right to health” . In another matter RE Article 26 of the Ø Population Health, which promotes and protects the health of the entire Constitution and the Health (Amendment) 281 (No.2) Bill 2004, it was argued that a population . constitutional right to healthcare could be From primary to acute healthcare derived from the right to life, the right to personal dignity and /or the right to bodily Primary care plays a central role in the integrity. Yet, in 2005 277 , the Irish Courts provision of healthcare services in Ireland rejected the existence of the right to health and is delivered by private General where that would create an obligation upon Practitioners (GPs), doctors who provide the state to provide free healthcare. 278 health services to people in their surgery or in the patient’s home. GPs are also Organisation gatekeepers for hospital treatment, Healthcare in Ireland is a two-tier system: providing referral letters to acute care for private and public healthcare systems. The the patients. GPs are located in the public healthcare system is governed by the community in single or multi person practices. If the patient does not have a Health Act 2004 279 , which established the Health Service Executive (HSE), the body Medical Card or a GP Visit Card, the responsible for the budget, the management service has to be paid for by the patient. The and the provision of health and personal charges for GP visits vary from €30 to €65 social services to everyone living in Ireland. across state. The return visits may be The HSE is directly accountable to the charged at the discounted rate (around €30). Minister for Health.

275 Heeney v. Dublin Corporation [1998] IESC 26 278 Ibid. (17th August, 1998) 279http://www.irishstatutebook.ie/eli/2004/act/42/en 276Malcolm Longford , Social Rights Jurisprudence. acted/en/html Emerging Trends in International and Comparative 280http://www.hse.ie/eng/services/publications/corp Law , Cambridge University Press, 2009 orate/Towards_Better_Healthcare.pdf 277 Unreported Supreme Court decision of 16th 281 Ibid. February 2005

58

IRELAND

Primary, community and continuing care of public funding comes from taxation and (PCCC) is provided by a range of health 30% from private healthcare insurance. professionals such as community-based Further to this, the Irish government pharmacists, public health nurses, oversees a medical card system for low- healthcare assistants, social workers, home income members of the population. help, midwifes and the like. There are also Although all Irish individuals are entitled to public and private facilities that provide non public healthcare, many choose to take out – acute long-term healthcare. Such long stay private health insurance to top up their public units include homes, district and entitlements to obtain faster and more community hospitals, and HSE welfare advanced medical treatments. The homes. downside to this system is the inequitable level of access to treatment and the long Acute healthcare services are delivered in waiting lists.284 the HSE public, voluntary public and private hospitals. Voluntary hospitals are In June 2017, 2,157 million, or 45.8% of the primarily financed by the State but may be Irish population, have private health owned and operated by religious orders or insurance. 285 While the level of healthcare lay boards of governors.282 coverage depends on the purchased package of health insurance, most private health Private healthcare system is provided insurance cover the hospital related costs, mainly by GPs and private hospitals. The not the primary care. The Irish health private sector also manages the private insurance market is mainly regulated by the nursing homes. A substantial amount of Health Insurance Acts 1994 286 to 2014 287 private healthcare takes place within the and Regulations made under those Acts. state – funded public hospital infrastructure, Health Insurance Authority regulates the which is quite unique in Ireland. The private private health insurance providers. provision of healthcare services is integrated into the public health system. For Reform of the Health Service example, under the National Health On 1 June 2016, the Dáil (National Strategy, public hospitals are mandated to Assembly of Ireland) agreed to establish a ensure that 20% of hospital beds are Special Committee -- the Committee on the reserved for private patients. A similar Future of Healthcare -- to achieve cross- situation exists in the primary provision of party consensus on a single long-term care: GPs have both private and public 283 vision for health care and the direction of patients. health policy in Ireland, and to make Funding recommendations to the Dáil in that regard. The Committee's agreed vision is for a In Ireland, the healthcare system is universal single-tier health and social care predominantly tax funded with additional system where everyone has equitable access contributions from private health insurance to services based on need and not ability to and out-of-pocket payments such as pay. Over time, everyone will have household expenditure on GP visits entitlement to a comprehensive range of payments, pharmaceuticals and private/ primary, acute and social care services at no public hospital stays. Approximately 70% cost or reduced cost. The vast majority of

282 Amnesty International, Healthcare Guaranteed? https://www.esri.ie/pubs/BKMNEXT261.pdf The Right to Health in Ireland, June 2011 285https://www.hia.ie/sites/default/files/Final%20HI 283http://www.hse.ie/eng/services/publications/corp A%20Aug%20Newsletter%202017_1.pdf orate/Towards_Better_Healthcare.pdf 286http://www.irishstatutebook.ie/eli/1994/act/16/en 284EMN Report, Migrant Access to Social Security acted/en/html and Healthcare: Policies and Practice in Ireland , 287http://www.irishstatutebook.ie/eli/2014/act/42/en 2014 acted/en/html

59

IRELAND care will be provided in the primary and insurance details or fails to demonstrate that community settings.288 s/he is covered under the EU rules, the hospital accounts department will issue a Shifting care out of hospitals and into the bill for a full applicable charge. The onus primary and community setting will in turn then rests on the individual to show that s/he help address the challenge of access to the is not liable for the fee. In order to establish hospital system, but other measures are also that a person is ordinarily resident, the HSE needed including waiting time guarantees may require the documentary evidence such for hospital care, expanded hospital as proof of property purchase or rental, capacity and the phased elimination of evidence of funds, a residence permit or a private care in public hospitals. work permit. Accessing Ireland healthcare system The medical card system Ordinarily residents Only medical cardholders have full eligibility to free healthcare in Ireland. The All persons legally residing in Ireland are Health Act 1970 292 introduced the Medical entitled to receive healthcare through the Card system entitling free access to health public healthcare system. services within the public system. A wide range of public healthcare services Determination of the eligibility for a are accessible free of charge or subsidised Medical Card is the responsibility of the by the Irish government for those who fulfil HSE. To determine such eligibility, the the ordinary residence condition. It requires three primary means are applied: means that an applicant has been resident or test, discretionary assessment and EU intends to be resident in the State for at least entitlements. one year. 289 Both the means test and the discretionary The ordinary residence condition was assessment are based on the concept of introduced by way of the Health avoiding the “undue hardship” to an 290 Amendment Act 1991 as the criterion to individual if they had to pay their own determine eligibility for healthcare services medical costs. The primary way to assess in Ireland. As it was not precisely defined, the likelihood of the “undue hardship” is guidelines on the Ordinarily Resident through a means test of income. The income Condition for eligibility for health services guidelines are used to establish eligibility were issued by the Department of Health in and are intended to ensure that individuals July 1992 (Circular 13/92) to Health Boards below certain levels of income have access 291 and Voluntary/ Joint Board Hospitals. to healthcare without any cost.293 HSE is responsible to determine whether a The criteria to determine whether someone person meets the “ordinary residence” has access are numerous and there is no condition. A ssessment of “ordinary unique threshold below which a person is residence” is made at the point of payment/ automatically declared in “undue hardship”. non-payment for a service. If a person However, to give an example, the weekly seeking to access the service fails to supply income limit for a single person aged under

288 Committee on the Future of Healthcare final 290http://www.irishstatutebook.ie/eli/1991/act/15/en report May 2017 acted/en/html http://beta.oireachtas.ie/en/committees/32/future-of- 291 Op. cit. note 284 healthcare/ 292http://www.irishstatutebook.ie/eli/1970/act/1/ena 289http://www.hse.ie/eng/services/publications/corp cted/en/html orate/medcardgpvisit.pdf 293http://www.hse.ie/eng/services/list/1/schemes/mc /forms/medicalcardguidelines2015.pdf

60

IRELAND

66 and living alone, to obtain the medical Anybody in Ireland with a medical card is of € 184.294 It is of €500 for people emergency is entitled to attend the aged over 70. 295 Emergency Department. A patient visiting the Emergency Department, either will be Individuals with Medical Cards also have treated and sent home, or will be admitted free of cost access to acute healthcare. Non- to a ward as an in-pa tient. A fee of €100 Medical Cardholders are liable for statutory applies unless the patient is referred to this in-patient charges and outpatient charges service by the GP.296 for public care in public hospitals. Drug payment scheme Medical Cardholders are entitled to the following services free of charge: The Drug Payment Scheme allows individuals and families who do not hold Ø Doctor visits: A range of GP medical cards to limit the amount they have services from a chosen doctor in to spend on prescribed drugs. Under the their local area Drug Payment Scheme, the patient will not Ø Prescription Medicines: The supply pay more than €144 in any calendar month of prescribed approved medicines, for approved prescribed drugs, medicines aids and appliances such as and appliances. The “ordinarily resident” wheelchairs and crutches condition is applicable for the eligibility for Ø Certain dental, eye and ear health this scheme.297 services Ø Hospital Care: All in-patient Long-term illness scheme services in public wards in public The Long-Term Illness Scheme allows hospitals, including public people with certain long-term conditions to consultant services obtain the medicines and medical and Ø Hospital visits: All outpatient surgical appliances they require for the services in public hospitals, treatment of their condition, free of charge. including public consultant services This scheme is not subjected to a means test Ø Maternity Cash Grant on the birth of or any income requirement and is separate each child from the Medical Card Scheme and the GP Ø Medical & Midwifery Care for Visit Card Scheme. However, only Mothers, including healthcare “ordinarily residents” can qualify for this related to pregnancy and the care of scheme.298 the child for six weeks after birth Ø Some personal and social care Waiting times services, for example, public health The structure of the Irish healthcare system, nursing, social work services and divided in public and private schemes other community care services generates sometimes long waiting times for based on client need treatments. It is common to have separate waiting lists for public and private patients GP Visit Cards entitle the holders to access for most procedures against which it is primary care provided by the GPs free of possible to ensure. This results in disparities charge. in waiting times that depend on means rather than clinical need. It is the most

294http://www.citizensinformation.ie/en/health/medi 296http://www.hse.ie/eng/services/publications/corp cal_cards_and_gp_visit_cards/medical_card_means orate/medcardgpvisit.pdf _test_under_70s.html 297http://www.hse.ie/eng/services/list/1/schemes/dru 295http://www.citizensinformation.ie/en/health/medi gspaymentscheme/ cal_cards_and_gp_visit_cards/medical_card_means 298http://www.hse.ie/eng/services/list/1/schemes/lti/ _test_over_70s.html

61

IRELAND visible aspect of inequity in the Irish – 2012301 provided a range of initiatives healthcare system.299 such as translated informational material in different languages on health services. It The National Treatment Purchase Fund also provided resources, training and (NTPF) was created in 2002 to address the support initiatives for staff in the healthcare waiting time issues. The NTPF is an system to be able to assist migrants more independent statutory agency with the aim effectively. of overseeing the faster access to elective hospital-based treatment; it involves the Asylum seekers and refugees government paying for patients to be treated Asylum seekers and refugees have access to for free in private hospitals in Ireland. healthcare on the same basis than Irish citizens. Access to healthcare for migrants Asylum seekers are entitled to the same range of health services as Medical Card In Ireland, the same conditions on access to Holders. While their application to remain healthcare generally apply to migrants as to in the state is being processed, they reside non-migrants. However, the rules, in the Direct Provision Centres and do not especially residence-related rules, have a have to fulfil the “ordinary residence” or different impact on migrants than on non- means- testing criteria to receive healthcare migrants. services. Services available to asylum According to the Health (Amendment) Act seekers under the Medical Card Scheme 1991, entitlement to access the healthcare is include: based on residency rather than on Ø GP services citizenship or the ability to contribute Ø Public Hospital in-patient and towards general taxation. Therefore, outpatient services migrants who meet the requirement of Ø Prescriptions/medicines “ordinary residence” condition are entitled Ø Women’s health services to access state-subsidized healthcare Ø Counselling services for people services, including the Medical Card traumatized by torture, rape and System. Both regular and irregular migrants other critical life experiences who do not meet this requirement may be Ø Optical tests and glasses asked to pay the full charges for healthcare Ø Hearing tests and aids services.300 Ø Dental treatment for adults 302 In addition, certain categories of non-EEA migrants are required to purchase private However, if asylum seekers chose to live healthcare insurance in order to register outside the Direct Provision Centres for a with the immigration authorities, these variety of reasons, they will face difficulties include international students and family in accessing Medical Card System. Indeed, dependents of work permit holders. asylum seekers have difficulties in There are some adaptive structures to providing sufficient evidence of their means migrants in healthcare in Ireland. The as they are effectively excluded from National Intercultural Health Strategy 2007 receiving any social supports from the State

299http://www.ucd.ie/geary/static/publications/worki 302http://www.citizensinformation.ie/en/moving_co ngpapers/gearywp200735.pdf untry/asylum_seekers_and_refugees/services_for_a 300 Op. cit. note 282 sylum_seekers_in_ireland/medical_services_and_e 301http://www.hse.ie/eng/services/publications/Soci ntitlements_for_asylum_seekers.html alInclusion/National_Intercultural_Health_Strategy _2007_-_2012.pdf

62

IRELAND by virtue of Habitual Residence Condition parents, generally as part of maternity and introduced in Section 17 of the Social infant care welfare services and school Welfare (Miscellaneous Provisions) Act health services. The principal legislation 2004.303 Such asylum seekers are unable to providing for children’s health services is meet “means test” criteria and this, in turn, the health Act 1970, but no legislation results in medical card refusal.304 This specifies precisely what services are to be means that this vulnerable group of people provided. In practice, children have access has no access to free of charge primary care to immunisation services, developmental and GP service. paediatric examinations, school health examinations and visits by public health Individuals who obtain the refugee status nurses. All Children under six are also are regarded as ordinarily residents and fall entitled to the GP visit card.307 under the same rules for entitlement for health services as Irish nationals. Undocumented migrants It is to be noted that, according to the Dublin The Irish law excludes undocumented III Regulation 305 , during the three first migrants, including children, from the months of the asylum application, another entitlement to access all but urgent medical country can request the responsibility to treatment: the full economic cost can be consider the application. As only one applied for any services provided. country can examine an asylum application, However, the cost of hospital charges can if this occurs, the asylum seeker will lose his be reduced or even waived if financial status and the rights attached to it in Ireland, hardship is incurred. and will be transferred to the country Access to healthcare over and above the declared competent to examine his urgent medical treatment (primary or application. secondary care) requires undocumented Pregnant asylum seekers and refugees migrants to have financial means to access private healthcare, usually GPs in private Maternity services are available free of practice. charge for pregnant asylum seekers and refugees under the Maternity and Infant Access to medical services such as Care Scheme even without a Medical Card hospitals, require a Personal Public Service or GP visit card. It entitles women to free Number (PPS number). This allows GP consultations, in-patient, outpatient and treatments for chronic illnesses. To apply accident and emergency services in public for a PPS number, an individual needs to hospitals in respect of the pregnancy and the provide a proof of identity and a home birth, and visits from a public health address. The PPS number is also used for nurse.306 employment. As the Social Welfare passes details to the Gardaí National Immigration Children of asylum seekers and refugees Bureau, undocumented migrants applying Children in Ireland have the same for a PPS number risk deportation. entitlement to health as their parents. Some services are however provided free of Undocumented migrants have no access to charge for children independently of their the Medical Card System as they are unable to meet the lawful residence requirement.

303http://www.irishstatutebook.ie/eli/2004/act/9/ena 305Op. cit. note 303 cted/en/html 306http://www.citizensinformation.ie/en/health/wom 304http://www.citizensinformation.ie/en/moving_co en_s_health/maternity_and_infant_welfare_services untry/asylum_seekers_and_refugees/services_for_a .html sylum_seekers_in_ireland/direct_provision.html#l1 307http://www.citizensinformation.ie/en/health/child f4da ren_s_health/child_health_services.html

63

IRELAND

This excludes this vulnerable group of securing a GP card, as applying to a PPS people from accessing free healthcare number may expose undocumented system in Ireland.308 migrants to the risk of deportation. Undocumented pregnant women Termination of pregnancy Every woman, irrespective of legal status, Ireland has a very restrictive abortion law. who is pregnant and ordinarily resident in Unborn life is constitutionally protected by Ireland, is entitled to maternity care way of Art. 40.3.3 as amended in 1983, (antenatal and postnatal) under the which states that “ The State acknowledges Maternity and Infant care Scheme.309 This the right to life of the unborn and, with due Scheme provides an agreed program of care regard to the equal right to life of the to all expectant mothers who are ordinarily mother, guarantees in its laws to respect, resident in Ireland. This service is provided and, as far as practicable, by its laws to by GPs and a hospital obstetrician. Women defend and vindicate that right ”.311 are entitled to this service even if they do not hold a medical card. Generally, all GPs Information on abortion services outside the have agreements with the Health Service state is also constitutionally protected, and Executive to provide these services; they do is regulated by the Regulation of not have to be part of the GPs and Medical Information (Services outside the State for 312 Cards System. The Scheme also provides Termination of Pregnancies) Act, 1995. for two post-natal visits to the general However, the Act also prohibits the practitioner. promotion or advocacy of abortion while providing information. If the woman has a significant illness, e.g. diabetes or hypertension, she may have up In 1992, a landmark Supreme Court case to five additional visits to the GP free of had a profound influence on abortion charge. Care for other illnesses which the legislation in Ireland and brought the Irish woman may have at this time, but which are abortion debate to international attention. In 313 not related to pregnancy, is not covered by the 1992 “X case” , a 14-year-old rape the Scheme. victim was prevented by a High Court injunction from travelling to the United Mothers are entitled to free in-patient and Kingdom to obtain an abortion. The girl’s outpatient public hospital services in family claimed that she was at risk of respect of the pregnancy and the birth and suicide if she was not allowed to obtain an are not liable for any of the standard in- abortion. This decision was appealed to the patient hospital charges. Supreme Court, which overturned the High Court order, stating that if there was a real Children of undocumented migrants and substantial risk to the life of the mother All children under 6 years of age who live that could only be averted by termination of in Ireland or intend to live in Ireland for at the pregnancy, this would be lawful. The least one year are entitled to GP services Supreme Court thus accepted risk of suicide free of charge under the GP Visit Card for as a real and substantial risk to life, children under six’ scheme.310 However, access to a PPS number may be a barrier in

308http://www.citizensinformation.ie/en/health/entitl 311https://www.constitution.ie/Documents/Bhunreac ement_to_health_services/health_services_and_visi ht_na_hEireann_web.pdf tors_to_ireland.html 312http://www.irishstatutebook.ie/eli/1995/act/5/ena 309http://www.hse.ie/eng/services/list/3/maternity/c cted/en/html ombinedcare.html 313http://www.supremecourt.ie/supremecourt/sclibra 310 Op. cit. note 303 ry3.nsf/(WebFiles)/B95A1F8B726975F18025765E 003C2C6E/$FILE/AG%20v%20X_1992.rtf

64

IRELAND effectively making abortion legal in Ireland "unborn human life", with a maximum under these restricted circumstances. sentence of 14 years of imprisonment.

However, it took two decades for the Irish EU Mobile citizens State to enact the legislation on foot of EU citizens ordinarily residing in Ireland Supreme Court ruling in the “X case”. After have the same access to healthcare as the the 2010 condemnation of Ireland by the nationals. None of the provisions in the European Court of Human Rights in the A, Health Act 2004 317 affects the operation of B and C v. Ireland 314 case for of its failure the EC regulations, which govern health to implement the existing constitutional service entitlements for EEA nationals. right to a lawful abortion, the protection of 315 Life during Pregnancy Act , which A range of services are available to EU currently regulates abortion, was enacted in mobile citizens on a temporary stay in 2013. Ireland and holders of the European Health Insurance Card (EHIC) under the EU The Protection of Life During Pregnancy Regulation 1408/71.318 EU residents may Act 2013 provides for a limited right to the qualify for a medical card if they fulfil the termination of pregnancy if the woman’s “ordinarily resident” condition, get a social life is at risk, including from suicide and security pension from another EU/EEA where the procedures carried out in the Act country or Switzerland, or work and pay are complied with. Yet, this Act limits legal social insurance in one of these countries abortion to this unique situation, as abortion and are not subject to Irish social security remains illegal even in cases of rape, incest, legislation. foetal anomaly or risk to a woman’s health. EU mobile citizens, who are on a temporary Furthermore, this restrictive abortion law stay in Ireland and who are not covered by has a discriminatory impact on women who the EHIC, will not be able to meet do not have the financial means to travel to “ordinarily resident” condition and will be another country to get an abortion, which subjected to full charges for healthcare.319 was criticised among others by the UN Human Rights Committee. Serious The European Communities (Free breaches of medical confidentiality are also Movement of Persons) Regulations 2015 reported as each termination of pregnancy provide that a non-EEA national family (carried out in Ireland) is notified to the member of EU citizen may in general 316 Minister of Health. In addition, to access receive the same medical care and services safe and legal abortion services, women as those to which the nationals or ordinarily must travel to another country, which is not residents are entitled to.320 possible for undocumented women, as it requires having a legal status and up-to-date Pursuant to the 2004 European Directive valid passport. 2004/38/EC 321 , after three months of residence in Ireland, if an EU mobile citizen Article 22 of the 2013 Act also defines the has insufficient funds and no health offence of intentional destruction of coverage, s/he will be considered as an

314 http://hudoc.echr.coe.int/eng?i=001-102332 318 Op. cit. note 304 315Protection of life during pregnancy Act – 2013 319http://www.citizensinformation.ie/en/health/entitl http://www.irishstatutebook.ie/eli/2013/act/35/enact ement_to_health_services/entitlement_to_public_he ed/en/html alth_services.html 316https://www.ifpa.ie/Hot- 320http://www.irishstatutebook.ie/eli/2015/si/548/m Topics/Abortion/Abortion-in-Ireland-Timeline ade/en/print 317http://www.irishstatutebook.ie/eli/2004/act/42/en 321Directive 2013/33/EC - 2013 acted/en/html

65

IRELAND undocumented migrant and will then be A non-EEA national can make an entitled to the same rights as undocumented application for humanitarian leave to third country nationals. remain under Section 3 of the Immigration Act 1999 325 after s/he has been issued with Reciprocal health agreement a Notification of Intention to Deport Ireland has a reciprocal health agreement pursuant to Section 3 of the Immigration with Australia, which entitles Australian Act 1999. nationals to receive emergency public As a legal status, leave to remain is hospital treatment subject to the standard normally granted where asylum seekers do charges for non-medical cardholders in not fit the strict definition of a refugee under Ireland, and to receive assistance towards the 1951 Convention relating to the Status the cost of prescribed drugs and medicines of Refugees and where subsequent on the same basis as people normally application for subsidiary protection is resident in Ireland.322 refused but humanitarian reasons exist for Unaccompanied minors not returning the person to their country of origin. This is provided for under section 17 The care of the unaccompanied minors falls of the Refugee Act 1996.326 However, leave under Child Protection, which is the to remain can be granted in broader responsibility of the HSE. The Child Care circumstances than this, as it is a Act 1991 323 is concerned with the welfare discretionary status. of the children who are not receiving adequate care and protection; and contains Section 3(6) of the 1999 Act sets out the several provisions relating to the matters to which the Minister must have unaccompanied minors. Children taken into regard to when determining to make a the care can access and benefit from deportation order. Under this section, the accommodation, education, counselling and Minister is required to consider a number of access to healthcare until they reach the age humanitarian grounds when determining of majority. the application, including the applicant’s connections to the State, his/her family Child and Family Agency was set up under situation, his/her employment prospects and the auspices of the Child and Family conduct. If the individual or a dependent has Agency Act 2013 324 responsible for fallen seriously ill and there is no alternative providing a wide range of services to treatment in their countries of origin, or if improve the wellbeing and outcome for all s/he has undergone some other calamity, a children, including unaccompanied minors. number of the section 3(6) headings would apply when the Minister is considering the All unaccompanied children under 18 are matter. entitled to access medical care and health screening free of charge, the same way as Serious health conditions are thus taken into asylum seekers. consideration in the decision to grant a permission to stay but there is no guarantee Protection of seriously ill of receiving a positive outcome. foreign nationals If, having considered these humanitarian factors, the Minister decides not to make a

322http://www.irishstatutebook.ie/eli/2013/act/40/en 325http://www.irishstatutebook.ie/eli/1999/act/22/en acted/en/html acted/en/html 323http://www.irishstatutebook.ie/eli/1991/act/17/en 326http://www.irishstatutebook.ie/eli/1996/act/17/en acted/en/html acted/en/html 324 Op. cit. note 322

66

IRELAND deportation order; it follows that the person HPSC Scientific Advisory Committee will be granted leave to remain in the publishes national guidelines on State.327 When humanitarian leave to communicable disease screening in Ireland. remain is granted, the person has the same The 2015 guidelines 331 provide a access to the healthcare system as ordinarily comprehensive assessment of infectious residents. diseases for migrants offered on a voluntary and confidential basis in any medical setting Non-EEA nationals are also allowed to where migrants present for healthcare. The apply for a medical treatment visa if the following infectious disease are included in required medical procedure cannot be the recommended assessment programme: performed in the country of permanent residence. The appointment with a private Ø Chickenpox hospital in Ireland has to be set up prior to Ø Hepatitis B the visa application and the patient has to Ø Hepatitis C demonstrate that s/he has sufficient Ø HIV resources to cover the treatment. The visa is Ø Intestinal Parasites issued only for the purpose of a medical Ø Malaria treatment and does not provide any Ø Measles entitlement to residency or work rights in Ø Polio Ireland.328 Ø Rubella Ø Sexually Transmitted Diseases Prevention and treatment of Ø Tuberculosis infectious diseases Asylum seekers, refugees and their families are entitled, free of charge, to medical The Health Act 1947 329 entitles the Minister for Health to declare by regulations diseases screening, vaccination and follow-up medical treatment for these diseases, under that are infectious, covered by legislation, 332 and that require notification to a Medical the medical card scheme. Officer of Health. The infectious diseases People receiving treatment for infectious notifiable in Ireland are regulated in the diseases are also exempted of the €100 fee 1981 Infectious Diseases Regulations as if they use accident and emergency services amended most recently by the Infectious or receive outpatient care without being Diseases (Amendment) Regulations 2016 referred by a GP, and of the charges for in- 330 (S.I. No.276 of 2016) , which identifies a patient and day services.333 list of notifiable communicable diseases. In Ireland, HIV treatment is provided free The Health Protection Surveillance Centre of charge for everyone, regardless of (HPSC) is the specialist agency mandated immigration status. for the surveillance of communicable diseases in Ireland. Hepatitis C treatment is free only for patients considered as seriously ill and

327http://www.citizensinformation.ie/en/moving_co 330http://www.irishstatutebook.ie/eli/2016/si/276/m untry/asylum_seekers_and_refugees/refugee_status ade/en/print _and_leave_to_remain/leave_to_remain.html 331Health Protection Surveillance Centre (July 328http://www.citizensinformation.ie/en/moving_co 2015), Infectious Disease Assessment for Migrants untry/moving_to_ireland/rights_of_residence_in_ir https://www.hpsc.ie/A- eland/residence_rights_of_non_eea_nationals_in_ir Z/SpecificPopulations/Migrants/Guidance/File,147 eland.html 42,en.pdf 329http://www.irishstatutebook.ie/eli/1947/act/28/en 332 Op. cit. note 282 acted/en/html 333http://www.citizensinformation.ie/en/health/hosp ital_services/hospital_charges.html

67

IRELAND people who contracted it through the more complex than just availability of administration of blood within Ireland.334 services. Others have to cover its full price, which amounts to around €45,000. Primary Health Care for Travellers Projects (PHCTPs) established a model for Traveller Irish travellers: a national participation in the development of health services. Travellers work as Community specific situation Health Workers, allowing primary Irish Travellers are an ethnic minority group healthcare to be developed based on the that has been part of Irish society for Traveller community’s own values and centuries. They have a value system, perceptions to achieve positive outcomes language, customs and traditions, which with long-term effects.337 make them an identifiable group both to themselves and to others. Their distinctive The strategic direction of Traveller lifestyle and culture, based on a nomadic healthcare is outlined in the National tradition, sets them apart from the general Traveller Health Strategy and the National population. Intercultural Health Strategy. The Traveller community in Ireland suffers from markedly worse health problems related to social exclusion as compared with the general population. Poor living conditions, social exclusion and low levels of education are some of the many factors that contribute to substandard health in the Traveller community. Traveller women live on average 12 years less than women in the general population and traveller men live on average 10 years less than men in the general population.335 Recent data suggest that Irish Travellers have the same options in availing of healthcare services as the settled population. 336 In addition, the use of GP and emergency services is higher in the Traveller community than in the settled population. Irish Traveller women’s health screening rates are higher than the general population. This does not necessarily imply equal access, since Travellers are not denied specific services, but this demonstrates that the challenges facing healthcare workers in providing equal care to Irish Travellers are

334http://www.citizensinformation.ie/en/health/healt An Overview of the Health Needs of the Irish h_services/blood_and_organ_donation/hepatitis_c_ Traveller Community. and_health_amendment_act_cards.html http://www.rcsismj.com/wp- 335http://www.hse.ie/eng/services/yourhealthservice content/uploads/RCSIsmj-Vol4-Srev-Irish- /SUI/Library/participation/inclusion.pdf Traveller.pdf 336 Royal College of Surgeons in Ireland, Student 337http://www.hse.ie/eng/services/yourhealthservice Medical Journal 2011; 4(1), Cultural Competence: /SUI/Library/participation/inclusion.pdf

68

ITALY

Regional governments are in charge of ITALY ensuring the delivery of public health services. National Health System Finally, local health authorities ( Aziende Constitutional basis Sanitarie Locali , ASL), and public or Article 32 of the Italian Constitution 338 private accredited hospitals deliver health 339 states that “The Republic protects services. individual health as a basic right and in the public interest; it provides free medical Funding care to the poor. ” The public system is financed through a corporate tax, collected nationally and Pursuant to article 117 of the Italian allocated back to regions; through a co- Constitution, the responsibility for payment for some services and healthcare is “shared by the national prescriptions; and through a fixed government and the 19 regions and 2 proportion of national value-added tax autonomous provinces ”. income, collected by the national Organisation and funding of Italy government. Then, the collected amount is healthcare system partially redistributed to the regions that are unable to gather sufficient resources to 340 Organisation ensure essential levels of care. Italy’s healthcare system is a regionally Regions are authorised to produce their own based National Health Service ( Servizio additional revenue. Sanitario Nazionale , SSN). It offers universal coverage, largely free at the point Private health insurance has a limited role in of use. the health system. In 2016, it accounted for 25% of the total spending for health.341 The SSN organisation is divided in three Private health insurances are of two sorts: levels: national, regional and local. corporate and non-corporate.

The national level, embodied by the Accessing the Italian healthcare system Ministry of Health and several specialised agencies, is responsible for defining the The National Public Health Service (SSN) principles and objectives of the health coverage is automatic and includes Italian system, determining the scope of the benefit citizens and authorised foreign residents. package of services guaranteed by the SSN Temporary visitors can access all services and of allocating national funds to the upon payment. regions. Primary and inpatient care covered by the National Health Service are free at the point of use. There are positive and negative lists that define the respective services covered and not covered by the SSN. Some services

338Italian Constitution 340The Commonwealth Fund, 2015 international http://www.jus.unitn.it/dsg/pubblicazioni/costituzio Profiles of health Care Systems , January 2016 ne/costituzione%20genn2008eng.pdf http://www.commonwealthfund.org/~/media/files/p 339Ferré F, de Belvis AG, Valerio L, Longhi S, ublications/fund- Lazzari A, Fattore G, Ricciardi W, Maresso A. Italy: report/2016/jan/1857_mossialos_intl_profiles_2015 Health System Review. Health Systems in _v7.pdf Transition, 2014, 16(4):1 –168 341 https://www.istat.it/it/archivio/201944

69

ITALY can also be covered on a case-by-case basis. Services as cosmetic surgery are not These lists are identified using criteria as covered. medical necessity, efficiency, human dignity and effectiveness. Services as orthodontics and laser eye surgery are covered on a case-by-case basis. Services and goods covered by the SSN are included in the list of LEA (Essential levels On January 2017 was published a new list of assistance – livelli essenziali di of LEA, adding new vaccines, updating the assistenza ), which includes: list of rare or chronic diseases, and including the medically-assisted

Ø Primary care procreation into the SSN coverage. 342 Ø inpatient care

Ø outpatient specialist care Regions have the possibility to offer

Ø home care services not included in the essentials levels

Ø preventive medicine of care, if they can finance themselves.343 Ø pharmaceuticals

Ø dental care (only for specific Cost sharing ( ticket sanitario ) populations such as children up to 16 years old, vulnerable people GP consultations and hospital admission (disabled persons, people suffering stays are free of charge, but patients have to from rare diseases or HIV), destitute pay a small part of the specialist visit and people, and individuals with ambulatory examination costs. This fee is urgent/emergency needs) limited to a ceiling determined by law, which is currently of €36.15 pe r 344 Mental health, preventive, long-term-care prescription. and public health services are not However, there are exemptions from cost specifically listed in the LEA. Instead, sharing, which apply to: national legislation defines an organisational framework to be applied by Ø low income households the regions, which provide for these health Ø people under 6 years old and over 65 services. years old who live in households with a gross income below the The coverage of prescription medicines is nationally defined threshold dependent on their clinical and cost (€36,151.98 for the year 2017) effectiveness. Medicines are divided into Ø severely disabled people three tiers: Ø unemployed people with an annual income below €8,263.31

· the first tier is always covered (A Ø prisoners class medicines) Ø people with chronic or rare diseases

· the second tier is covered only in Ø HIV screening tests hospitals (H class medicines) Ø Pregnant women (the exemption · the third tier is not covered (C class applies only to care related to their medicines) pregnancy) Ø Tests for early detection of tumours

342 DPCM ( Decreto del Presidente del Consiglio dei 344http://www.salute.gov.it/portale/esenzioni/dettagl Ministri – Decree of the President of the Ministers ioContenutiEsenzioni.jsp?lingua=italiano&id=4674 Council), 12 January 2017 &area=esenzioni&menu=vuoto 343 Op. cit. note 340

70

ITALY

A reform of the ticket sanitario is currently In the first six months of residence in Italy under discussion. 345 they cannot work, and as such are exempt from the co-payment ( ticket sanitario ). 348 Termination of pregnancy Pursuant to the Law No. 194 of 22 May Undocumented migrants 1978, abortion is authorised in Italy up to 90 For undocumented migrants, the services days from the conception. The law provides provided and co-payment modalities are for a reflection period of 7 days between a similar to those in force for Italian citizens. medical examination for abortion and the termination of pregnancy. Termination of If an undocumented migrant is poor and pregnancy is covered by the SSN. signs a “statement of poverty” valid for 6 months 349 , s/he may ask for the assignation In case of serious risk for the health, mental of a STP code (for Extra-EU citizens) or an health or life of the mother, abortion is ENI code (for EU citizens) to obtain possible up to the fourth month of healthcare without a co-payment. pregnancy. An obstetrician-gynaecologist must certify the existence of the risk. Extra-EU migrants shall also be exempt from co-payment for a specific health In March 2017, the United Nations Human service in case of proven indigence (if so, an Rights Committee raised concern about X01 code is assigned). access to abortion for women in Italy, in regards to the high percentage of Undocumented migrants can access urgent gynaecologists who refuse to perform and essential care. abortion 346 . Urgent care Access to healthcare for “Urgent care” comprises treatments that migrants 347 cannot be postponed without threatening the life or possibly damaging the health of a Asylum seekers, refugees, beneficiaries person.350 of subsidiary protection and humanitarian protection These services are co-payment exempt, Asylum seekers, refugees, beneficiaries of pursuant to the Legislative Decree no. 351 subsidiary protection and humanitarian 286/98, art. 35, paragraph 4 and to the protection are entitled to healthcare as ministerial circular no. 5, of 24 March 352 Italian citizens. They can register to the 2000 , on the same basis as Italian 353 SSN. citizens.

345http://www.lastampa.it/2017/04/06/economia/tic Agreement no. 255/CSR of 20 December 2012 ket-sanitari-meno-cari-ma-stretta-sulle-esenzioni- (Official Gazette General Series no. 32 of 7-2-2013, attraverso-il-reddito-isee- ordinary integration no. 9) 9YDmllCDUpf1eUeMJQ9L1M/pagina.html 350 Ministerial Circular no. 5 of 24 March 2000 346http://www.ohchr.org/EN/NewsEvents/Pages/Dis (Official Gazette no. 126 of 1 st June 2000, [pages 36- playNews.aspx?NewsID=21362&LangID=E 43] 347 The following content is based on the work and 351 Legislative Decree no. 286 of 25 July 1998 observations of NAGA-Milano (ordinary integration no. 139/L to the Official 348https://www.salute.gov.it/imgs/C_17_opuscoliPo Gazette no. 191 of 18 th August 1998); ster_118_allegato.pdf 352 Op. cit. note 350 349 See form 1, annexed to the Ministerial Circular 353 Pursuant to art. 1, par. 796 item p of the law no. no. 5 of 24 th March 2000 (Official Gazette no. 126 of 296/2006 1st June 2000), p. 44 O.G . and the State-Regions

71

ITALY

Essential care In general, health services for essential care shall be provided on the same basis of co- “Essential care means all health, diagnostic 359 and therapeutic services (even continuous) payment as Italian citizens. related to pathologies that are not More specifically, a third-country national dangerous, immediately or in the short may be assigned with a specific X01 code 360 term, but which might originate a major (if s/he has submitted a second declaration health damage or endanger the life of the of indigence) but it is only valid for a single person in the long term (complications, service and not for the purchase of 354 chronicity or worsened conditions) ”. medicines . In addition, there are some special These treatments include: situations in which migrants who had irregularly entered the territory or who have

Ø First-level ambulatory health services overstayed their visa are however entitled to (with direct access) and specialised register under the SSN, pursuant to the services to be provided at local health State-Regions Agreement no. 255/CSR: facilities or public/private accredited health centres in the form of general Ø Request of international ambulatories or hospitals, possibly in protection/asylum, connection with specifically Ø Custody (including minors without experienced volunteering parents), associations 355 Ø Awaiting regularisation (temporary Ø Hospitalisations: to be made upon registration for foreigners awaiting request by the doctor who works in regularisation or to emerge from the facilities 356 irregular work), Ø Pregnant women up to six months after All the services, prescriptions and reporting the child’s birth, practices shall be completed using the Ø Pr isoners in adult or minor’s jails, Temporary Present Foreigner (STP - patients in judicial psychiatric hospitals, Stranieri Temporaneamente Presenti ) under custodial sentence allowing work code 357 , for Extra-EU citizens, or the Non outside prison or subject to alternative Registrable European (ENI - Europei Non measures, Iscritti ) code for EU citizens.358 The Local Ø Victims of slavery entered into social Health Units, by Hospitals, University protection programs (Leg. Decree no. Polyclinics and the Institutes for Treatment 286, of 25 July 1998, art. 18) and Research, shall issue the STP and ENI Finally, it is to be noted that undocumented codes. migrants who access a health facility cannot be reported in any way to the authorities, unless it is mandatory for Italian citizens

354 Ministerial Circular no. 5 of 24 March 2000 and State-Regions Agreement no. 255/CSR of 20 355 Presidential Decree no. 394 of 31 August 1999 December 2012 (ordinary integration no. 190/L to the Official 359 Pursuant to the Leg. Decree no. 286/98, art.35, Gazette no. 258 of 3 November 1999), article 43 par. par. 4 and to the ministerial circular no. 5, of 24-3- 8 2000, p. 42 in the Official Gazette and Ministerial circular no.5, of 24-3-2000 360Annex to the Decree by the Ministry of 356 Presidential Decree no. 394 of 31 August 1999, Economics and Finance of 17 March 2008. 8.27 Article 43 par. 8 Annex 12-National codes for exemptions from co- 357 As provided for in the ministerial circular no. 5 of payment. Official Gazette no. 86 of 11 April 2008. 24-3-2000, page. 42 and in the State-Regions And Agreement no. 255 CSR, of 12 December 2012 State-Regions Agreement no. 255/CSR of 20 358 Note by the Ministry of Health DG December 2012 (Official Gazette General Series no. RUERI/I/II/3152-P/1.3.b/1, 19/2/08 32 of 7-2-2013, ordinary integration no. 9

72

ITALY too, pursuant to the Leg. Decree no. 286 of Foreign minors from age 0 to 6 are exempt 25 July 1998, art.35 par. 5. from co-payment, on the same basis as Italian citizens 363 , as stated in the Leg. Undocumented pregnant women Decree no. 286 of 25 July 1998, art 35, par. Pregnant women can temporarily register to 3, item b and in the State-Regions the SSN and receive free healthcare related Agreement no. 255 CSR, of 12 December to pregnancy and maternity during their 2012, page 20 and page 37. pregnancy and up to six months after the child’s birth. In many regions, children of undocumented migrants aged from 14 to 18 years The father of the child can also temporarily encounter great difficulties to register to the register to the SSN. SSN and claim their rights to healthcare. For children of undocumented migrants, a Children of undocumented migrants privileged health assistance is in place, with All children can apply for a residence the registration under the SSN, compared to permit as minors (as they cannot be that for adults (using the STP or ENI code). expelled). With a residence permit, they can However, only three regions (Liguria, register to the SSN. Lazio, Campania) currently acknowledge this privilege until 18 years of age. Children waiting for residence permit can In the other regions, the age bracket from 14 also register to the SSN. 361 to 18 is generally excluded.364 The reason for this exclusion could be the difficulty to Health services to children (0 to 18 years of 362 identify the exact age, in the absence of age) of undocumented migrants are evidence document. In 2014, the Cross- provided through the registration under the Regional Migration and Health Services Regional Health Service ( Servizio sanitario Commission (of the Health Commission regionale ), pursuant to the State-Regions Coordination at the Conference of Regions) Agreement no. 255/CSR of 20th December issued a “Protocol for the identification and 2012. holistic multidisciplinary ascertainment of the age of minors without parents ”. Children from 0 to 6 years old can register However, the procedure was conceived for with a paediatrician (in Italy children do not minors without parents and it would be register to general practitioners, but to generally complex and expensive to extend paediatricians). From 6 to 14 years, they can its implementation to minors in general. choose either to register with a paediatrician or a GP. After 14 years old, children must Thus, the age bracket between 14 and 18 is register with a GP. often excluded from the possibility to register to the SSN.

361 Decree of the President of the Ministers Council 363At national level, the E01 exemption provides for of 21 January 2017 , article 63.4 Italian minors not to pay the health service if below http://www.gazzettaufficiale.it/atto/serie_generale/c the age of 6 and the total family income is lower than aricaArticolo?art.progressivo=0&art.idArticolo=63 €36,151.98 per year (N. L. no. 537, of 24 February &art.versione=1&art.codiceRedazionale=17A0201 1993 art. 8 par. 16 and the following modifications). 5&art.dataPubblicazioneGazzetta=2017-03- 364 The bracket between 14 and 17 is considered as 18&art.idGruppo=6&art.idSottoArticolo1=10&art.i still belonging to the lower age range by the dSottoArticolo=1&art.flagTipoArticolo=0#art Convention on the Rights of Children, ratified and 362The Law no. 176 of 27 May 1991: Ratification and implemented pursuant to the law no. 176 of 27 th May execution of the New York Convention on the Rights 1991. The Convention and the related ratification of Children of 20 November 1989, art. 1 ”children law are also referred to in item b of paragraph 3 in as intended as all human beings aged below 18 ” the Consolidated Text no. 286/98 art. 35.

73

ITALY

Implementation of the national health already implemented among the other EU legislation for undocumented migrants member states. The Italian State The national health legislation guarantees progressively codified this service for EU access to healthcare for undocumented citizens that cannot be served under a migrants. Yet, the implementation level of mutual scheme, by issuing some national the provided services is not satisfactory. indications, which however suffered late and incomplete conversions at regional First, the fragmentation of the national level. legislation in the different regional legislations tends to reduce its These critical points can be attributable effectiveness. The health legislation in Italy mostly to a misunderstood regional currently falls under the competence of both autonomy in the implementation of the the State and the Regions.365 national principles and to the problems connected with the arrival of a large number Indeed, the Constitutional Law no. 3 of 18 of EU citizens to Italy, a part of whom does October 2001 “Changes in title 5 of the not meet the requisites to register under the second part of the constitution ” states SSN. however “the protection of health is one of the subjects of the concurrent legislation. In However, the difference in the the concurrent legislation subjects, the implementaion of the law does not concern Regions are assigned with the legislative urgent care. Indeed, all regions provide for power, with the exception of the definition urgent care for free to both Extra-EU and of the fundamental principles which is EU undocumented migrants, adults and reserved to the State ”. minors, at public or private hospitals under agreement with the SSN. Essential This possible legislative ambiguity fostered medicine health services to undocumented some interpretation differences in the migrants are also guaranteed in all the national law, founded on arbitrary readings Regions, under different modalities, of the essential levels of care, that were however always in compliance with the translated into partial regional health principles in paragraph 8 of art. 43 in the regulations that are quite different. To Presidential Decree no. 394/99. Molise is remedy this situation and make all the the only exception, where it is currently regional legislations uniform, the State and possible to enjoy ambulatory services for the Regions signed an Agreement (no. essential pathologies only at Emergency 255/CSR) on 20 December 2012. The Rooms. implementation of this Agreement is The difference between regions applies for however currently incomplete, which essential medicine ambulatory services, as causes differences in the implementation. different modalities exist within the public facilities for the provision of these services. Second, the access of Romanians and Bulgarians (defined as neo-EU citizens for Unaccompanied minors some time) in the European Union in 2007 The DPCM ( decreto del presidente del created an unbalance as regards the health service provision. Unlike the other EU consiglio dei ministri ), of 10 November member states, not all Romanian and 2016 no. 234, establishes mechanisms for the age determination of unaccompanied Bulgarian citizens can register under the minors victims of human trafficking, using SSN. This involved some difficulties in the a multidisciplinary approach. These application of the mutual health service as

365 L. no. 59 of 15 March 1997

74

ITALY mechanisms are in the process of being Children of EU mobile citizens 366 extended to all unaccompanied minors. The right to register under the SSN for all foreign minors represents an example of On March 2017, a new law was passed that inconsistency in the text of the Italian protects unaccompanied minors (refugees Health legislative framework. This right is and migrants) and allows them to register to 367 stated in a different way for extra-EU and the SNN. The law provides for a better EU citizens. protection and reception system, which will be standardised at a national level. Among For extra-EU citizens, the State-Regions the provisions is a ban on deportation for Agreement specifically provides for “the children; a maximum period of detention mandatory registration of foreign minors into the reception centres of 30 days on the territory ”. The possibility to register (instead of 60 days); a strengthening of the under the SSN for EU minors (not meeting children’s rights to access healthcare and the requirements) is not specifically stated, education. 368 however it can be understood from the EU mobile citizens statement (State-Regions Agreement page 36): “the protection of the minor’s health is The law makes a difference between EU specifically guaranteed as provided for in citizens and extra EU citizens. the Convention on the right of Children (20- 11-1989), ratified and made executive The X01 exemption code, that cancels co- pursuant to the law no.176 of 27 th May payment for a specific health service and 1991”.369 The right to register under the that applies when the patient cannot pay, is SSN for the EU minors (not meeting the not applicable to EU mobile citizens. requirements) is confirmed in art. 1 par. 2 of 370 In two regions (Lombardy and Umbria) no the Consolidated Text no.189/02 too. ENI code is assigned to EU citizens. For this group of EU adult citizens, this involves the Prevention and treatment of impossibility to enjoy essential medicine infectious diseases ambulatory services, if not at the Emergency Rooms that often – however not Pursuant to article 35-3 of the Legislative always – meet those requirements without Decree no. 286 of 25 July 1998, being able to guarantee continuous undocumented migrants can access treatment. In Puglia, a recent regional prevention, diagnosis and treatment of resolution (20 December 2015) abolished infectious diseases. Article 35-4 states that the ENI code “ limiting it to urgencies only ”, these services can be provided without thus putting this region in a situation which charge to undocumented migrants who lack is similar to that of Lombardy and Umbria. resources (except for the remaining co- payment, on the same basis as Italian 371 citizens).

366http://www.garanteinfanzia.org/news/garante- and to guarantee them to all the children in their albano-vigore-il-decreto-determinare- jurisdictions, without any differences ” l%E2%80%99et%C3%A0-dei-minori-vittime-di- 370Par. 2 in art.1 of the Leg. Decree no.189/02 states tratta-passo-avanti “This single text shall not apply to the EU-member- 367 Law no. 47 of April 7, 2017 states’ citizens if not to the extent that they are more 368 Italian Committee for UNICEF favourable regulations ” https://www.unicef.it/doc/7324/approvata-la-legge- 371 Legislative Decree no. 286 of 25 July 1998 zampa-per-minori-stranieri-non-accompagnati.htm “Consolidated text of provisions governing 369Law no. 176 of 27 th May 1991, art. 2. “ The States immigration and the status of aliens” commit to respect the rights stated in this Convention

75

ITALY

On the Memorandum DGRUER1/11/3152- P/1.3.b/1 of 19 February 2008, the Department of Prevention and Communication of the Ministry of Health specifies that destitute EU citizens should have access to prevention, diagnosis and treatment of infectious diseases.

76

LUXEMBOURG

Long-term care is financed through separate LUXEMBOURG insurance called “ assurance dépendance” (nursing care insurance). This is funded by National Health System contributions from all active workers and retired individuals. They all pay a 1.4% Constitutional basis contribution of all their professional and Article 11 § 5 of the 1868 Constitution real estate incomes. These contributions are provides for the right to healthcare as also complemented by State and electricity 377 follows: “The law regulates […] social sector funding. security, the protection of health, the rights of workers, [and] the struggle against Accessing Luxembourg healthcare poverty and the social integration of system citizens affected by disability” .372 According to Article 1 of the Social Security Code, health insurance is Organisation and funding of the compulsory in Luxembourg.378 healthcare system Nonetheless, one of the key issues in The financing of Luxembourg’s healthcare Luxembourg is that access to healthcare and system is based on social participation by social protection is directly linked to the employees and employers and also on patient’s registered address. public funds contributed by the State. The contributions from employees and State benefits for destitute people are paid employers amount to approximately half of for healthcare contributions. The benefit the budget. The State contribution is funded authority pays the contributions in the same through general tax income.373 way an employer would. The rate amounts to 5.2% divided equally between the benefit The necessary financial resources to fund authority and the beneficiary.379 the health system are based on contributions, except for the financing of All dependent family members are covered maternity care, which is paid by the by contributing family members, pursuant State.374 to Article 7 of the Social Security Code.380 Students and unemployed children are Contributions are shared equally between covered up until 27 years of age.381 employees and employers, who each contribute 2.8% of the employee’s gross The national healthcare system covers the income (up to a maximum taxable income majority of treatment provided by general of €9,992.93 per month 375 ) on average to practitioners and specialists as well as the National Health Fund ( Caisse Nationale laboratory tests, pregnancy, childbirth, de Santé – CNS ).376

372 Constitution of Luxembourg of 1868 377http://www.mss.public.lu/dependance/ad_finance http://www.legilux.public.lu/leg/textescoordonnes/r ment/index.html ecueils/Constitution/constitution_gdl.pdf 378Social Security Code , 373http://www.cleiss.fr/docs/regimes/regime_luxem http://data.legilux.public.lu/file/eli-etat-leg-code- bourg-salaries.html#generalites securite_sociale-20160101-fr-pdf.pdf 374 Ibid. 379http://www.sante.public.lu/fr/politique- 375http://www.sante.public.lu/fr/politique- sante/systeme/financement/cotisations- sante/systeme/financement/cotisations- sociales/index.html sociales/index.html 380 Op. cit. note 378 376http://www.cdm.lu/entreprise/conseils-aux- 381http://www.sante.public.lu/fr/politique- entreprises/gestion-personnel/charges-sociales sante/systeme/financement/cotisations- sociales/index.html

77

LUXEMBOURG rehabilitation, prescriptions and above this threshold will be reimbursed by hospitalisation.382 the competent illness insurance fund.387 All medical fees in the country are set by the If a patient has paid healthcare fees in illness insurance fund. Fees are revised on advance and is not willing to wait for a bank an annual basis. By law, all healthcare transfer to be reimbursed, s/he can also be providers must observe these fees and there reimbursed via a bank cheque. There are are strict penalties for abuse of the two conditions for reimbursement by system.383 cheque: the payment must have been made less than 15 days beforehand and the The patient must pay all costs and then amount must be over €100.388 submit receipts to the National Health Fund for reimbursement. The amount received as Since 1 January 2013, and in accordance a reimbursement varies from 80% to 100%. with Article 24.2 of the Social Security The first consultation at a GP is reimbursed Code, if authorised residents in at 88%384 and further consultations, which Luxembourg are not able to pay their occur within 28 days, are reimbursed at healthcare costs in advance, they can apply 95% up to the cost of €44.90 per to the relevant Social Welfare Office for consultation. The part of the cost per Third-party Social Payment ( tiers payant consultation beyond this threshold is fully social – TPS ).389 reimbursed.385 According to the law, TPS can be granted to Usually the reimbursement for prescription any resident in Luxembourg. The Social medicine is 80%, although there are four Welfare Office is the only body competent categories of reimbursement for to assess whether or not an individual prescription medicine and levels range from should benefit from it.390 . 0% to 100%.386 When a person is granted TPS, s/he is given Prescription drugs can only be prescribed a certificate and a book of special labels.391 by doctors and consultants and the costs are From this point on, s/he will not have to pay reimbursed by the Caisse Nationale de in advance for any care. When s/he access Santé. Non-prescription drugs are priced healthcare s/he is asked to give the much higher and are generally not practitioner a label and the CNS will pay reimbursed. directly for each episode of care. Indeed, the practitioner after receiving the patient will The annual participation of insured send the prescription to the CNS together individuals to their healthcare costs cannot with the label, in order to obtain exceed 2.5% of their contributory income of payment.392 the preceding year. If this occurs, all cost

382http://www.mss.public.lu/publications/rapport_ge 387http://cns.public.lu/en/assure/vie- neral/rg2015/rg_2015.pdf privee/depenses-sante/avance-frais/paiement- 383http://www.sante.public.lu/fr/politique- complementaire.html sante/systeme/financement/cotisations- 388http://cns.public.lu/en/assure/vie- sociales/index.html privee/depenses-sante/avance-frais/remboursement- 384 https://www.wort.lu/fr/luxembourg/a-partir-de- cheque.html janvier-nouveaux-tarifs-pour-les-medecins-et-les- 389http://www.cns.public.lu/fr/assure/vie- dentistes-5863b96053590682caf16ecb privee/depenses-sante/tiers-payant-social.html 385 390http://www.cns.public.lu/fr/assure/vie- http://www.mss.public.lu/publications/droit_securit privee/depenses-sante/tiers-payant-social.html e_sociale/droit2002/droit_2002.pdf 391http://www.cns.public.lu/fr/assure/vie- 386http://www.cns.public.lu/fr/professionnels- privee/depenses-sante/tiers-payant-social.html sante/medicaments/liste-positive.html 392http://www.cns.public.lu/fr/assure/vie- privee/depenses-sante/tiers-payant-social.html

78

LUXEMBOURG

The aim of TPS is to facilitate access to care they are asked for a financial guarantee healthcare for people with limited before they are treated. income.393 It can be granted for three months, and exceptionally for six Luxembourg also has specialist hospitals months. 394 At the end of the three months, and specialist doctors available for the beneficiary can ask the Social Welfare consultation but an appointment is Office for an extension.395 necessary. As written above, access to healthcare and Access to healthcare for social protection in Luxembourg are migrants directly linked to the patient’s address. In other words, if an individual does not have Asylum seekers and refugees a proper registered address they will not be able to access social protection. This is why The main regulations on International Doctors of the World – Médecins du monde protection in Luxembourg are the Law on 397 (MdM) Luxembourg currently mostly treats International and Temporary Protection homeless people, EU citizens and third and the Law on the Reception of Applicants country nationals who are not resident. for International Protection and Temporary Protection 398 , both adopted on 18 December People can also take out an additional health 2015. insurance coverage, which is mostly used to pay for services classified as non-essential Asylum seekers under the compulsory scheme. Private The law on the Reception of Applicants for health insurance is provided by non-profit International Protection and Temporary agencies or mutual associations ( mutuelles ), Protection of 18 December 2015 399 which are also allied to the Ministry of regulates the rights of asylum seekers. Social Security. Pursuant to article 8-1 of this law, asylum There are no private hospitals in seekers are entitled to a standard of living Luxembourg, as all hospitals are state-run that “ ensures their subsistence and protects by the CNS and patients must have a their physical and mental health ”. Medical referral from their doctor for an admission care is provided by the Luxembourg to hospital, unless it is an emergency.396 In Reception and Integration Agency practice, people go to hospitals even if they (OLAI).400 do not have a referral from a doctor. However, according to article 8-3, to benefit In theory, all emergency care is provided at from the material reception conditions and hospitals. It is important to stress that, in medical care, the applicant must be without practice, when patients with no insurance sufficient financial resources and stay at a arrive at hospitals in order to get emergency

393http://cns.public.lu/en/assure/vie- http://www.legilux.public.lu/leg/a/archives/2015/02 privee/depenses-sante/avance-frais/remboursement- 55/a255.pdf#page=2 cheque.html 398 Law on the Reception of Applicants for 394http://www.cns.public.lu/en/assure/vie- International Protection and Temporary Protection privee/depenses-sante/tiers-payant-social.html – 2015 395http://www.cns.public.lu/fr/assure/vie- http://eli.legilux.public.lu/eli/etat/leg/loi/2015/12/18 privee/depenses-sante/tiers-payant-social.html /n16 396http://www.expatica.com/lu/healthcare/Healthcar 399Op. cit. note 397 e-in-Luxembourg_105466.html 400 http://www.olai.public.lu/en/index.html 397Law on International and Temporary Protection of 18 December 2015

79

LUXEMBOURG place determined by the competent and other complementary forms of authority. protection of 5 May 2006, which was the former central legislation concerning Asylum seekers are entitled, to free housing international protection. and food distribution, as well as a monthly allocation. If food is provided, the monthly Pursuant to article 62-1 of the Law on allocation amounts to € 26.27 for adults and International and Temporary Protection, unaccompanied minors and to €13.13 for beneficiaries of a form of international minor children, in accordance with article protection have the same access to 13-1 of the law on the Reception of healthcare as Luxembourg nationals. Applicants for International Protection and Temporary Protection.401 Article 62-2 of this law further provides that beneficiaries of a form of international In cases where it is not possible to provide protection with special needs are also access to food, the monthly allocation is entitled to free mental healthcare. This €231.27 for adults and for unaccompanied category comprises: pregnant women; minors, and of € 192.5 for minors pursuant disabled individuals; victims of torture, of to article 13-2 of the same law.402 rape or of any severe form of mental violence; minors victim of any form of The monthly allowance is supplemented by abuse, negligence, inhumane or degrading benefits in kind or vouchers that cover costs 403 treatment; and minors victim of armed as accommodation and medical costs. conflicts. Asylum seekers who are victims of rape or Undocumented migrants other serious violence are entitled to adequate medical and psychological care.404 Undocumented migrants include visa or permit “overstayers”, rejected asylum The complete removal of material reception seekers and individuals who have entered conditions of asylum seekers by the the country without a permit. In authorities is prohibited. Access to basic Luxembourg, undocumented migrants have healthcare and a dignified and adequate no access to healthcare.406 standard of living of the applicant, are guaranteed in all circumstances by article Moreover, children of undocumented 24 of the Law on the Reception of migrants have access to inclusive healthcare Applicants for International Protection and only if they are unaccompanied, whereas Temporary Protection. children of undocumented migrants living with their families often face considerable Refugees difficulties in accessing basic preventive and follow-up care.407 The Law on International and Temporary Protection 405 repealed the Law on asylum

401http://www.olai.public.lu/fr/actualites/2017/02/es in the European Union”, European Observatory on pace-communes/tout-savoir-sur.pdf Health Systems and Policies , 2011, 402http://www.olai.public.lu/fr/actualites/2017/02/es http://www.euro.who.int/__data/assets/pdf_file/001 pace-communes/tout-savoir-sur.pdf 9/161560/e96458.pdf 403Law on the Reception of Applicants for 407Platform for International Cooperation on International Protection and Temporary Protection , Undocumented Migrants (PICUM), Preventing Article 13-3 undocumented pregnant Women and Children from 404Law on the Reception of Applicants for Accessing health Care: fostering health inequalities International Protection and Temporary Protection , in Europe , March 2011, Article 17 http://picum.org/picum.org/uploads/publication/Pub 405 Op. cit. note 397 lic%20hearing%20on%20access%20to%20health% 406 Bernd Rechel et al., “Migration and health 20care%20for%20undocumented%20pregant%20w

80

LUXEMBOURG

With regard to this issue, the European of conception 413 for all women 414 , provided Committee of Social Rights, (Council of that: Europe), issued conclusions in 2013 on the conformity of Luxembourg’s health system Ø The woman has obtained a certificate regarding the European Social Charter.408 of pregnancy, information and These conclusions are quite revealing documentation after consulting a concerning undocumented migrants’ access specialist in gynaecology and to emergency care. obstetrics at least three days beforehand The report concludes that Luxembourg’s Ø A licensed specialist in gynaecology legislation and practice do not guarantee and obstetrics carries out the that all foreign nationals in an irregular termination of pregnancy and situation can benefit from emergency care provides information on the available for as long as they may need to. The psychosocial support and counselling Committee notes that there is no specific legislation concerning undocumented The consent of the parents, guardians or a migrants’ acce ss to health. Moreover, their judge is required for minors under 18. access to emergency care has been limited to two or three days.409 Under exceptional circumstances (life- threatening risk to the mother or the unborn Unaccompanied minors child), a pregnancy termination may take place after 12 weeks. In these cases two Pursuant to the Law of 18 December 2015 physicians must state in writing that there is relating to the reception of applicants for a serious risk to the woman’s health. A international and temporary protections, doctor has the right to refuse to perform a unaccompanied minors are entitled to pregnancy termination. accommodation upon their entry on the territory 410 and to social benefits. They are The cost of a pregnancy termination is assigned a guardian to assist them with the reimbursed by the social security service.415 legal procedures.411 Protection of seriously ill Termination of pregnancy foreign nationals The most recent law regulating termination In Luxembourg, the Immigration Medical of pregnancy was adopted on 17 December Department makes sure that the 2014412 , modifying the 1978 law that organisation of the medical part of the authorised abortion in Luxembourg. legislation on the free circulation of people Termination of pregnancy is legal in and immigration 416 is properly Luxembourg up to 12 weeks from the date implemented.

omen%20and%20children%20- 411 Ibid. Article 20 %208%20December%202010_1.pdf 412 Law on termination of pregnancy – 2014 408European Social Charter, European Committee of http://www.sante.public.lu/fr/legislation/droits/inter social rights, Conclusions, Conclusions XX-2 ruption-volontaire-grossesse/interruption- (2013), (LUXEMBOURG) volontaire-grossesse-modification-code-penal- Articles 3, 11, 12, 13 et 14 of the 1961 Charter, 2014-12-17-loi.pdf March 2014, 413 Law on termination of pregnancy, article 12 http://www.coe.int/t/dghl/monitoring/socialcharter/ 414 http://www.sante.public.lu/fr/droits/ivg/femme- Conclusions/State/LuxembourgXX2_fr.pdf non-residente/index.html 409 Ibid. 415 Law on termination of pregnancy, Article 14 410 Article 21 of the Law of 18 December 2015 416 Law on free circulation of 2008 , modified by the relating to the reception of applicants for law of 8 March 2017 international and temporary protections

81

LUXEMBOURG

This service has four principal missions: to with the possibility of renewal not organise the medical check-ups of third- exceeding two years.422 country nationals, to assess whether or not foreign nationals may have their expulsion If after two years the individual’s health from Luxembourg deferred for medical state has not improved and still needs the reasons, to assess whether or not foreign treatment, then s/he can apply for a 423 nationals may stay in Luxembourg in order residency permit for medical reasons. to receive medical treatment which is not The deferment can be extended to members covered by social security and to give of the individual’s family. People who advice on limitations to the right for EU benefit from such a deferment receive a citizens and their family members to certificate of deferment which grants them circulate and live freely in Luxembourg.417 healthcare and access to social aid.424 For a According to the Law of 29 August 2008, foreign national who wants to have access modified by the law of 8 March 2017 418 , the to a specific medical treatment in Immigration Medical Department (SMI – Luxembourg, different documents have to Service Médical de l’Immigration ) of the be presented to authorities: National Health Directorate ( Direction de · Medical certificates proving the la Santé) must issue medical advice when necessity of such a treatment, with requested by the Ministry of Immigration in specific mention of the type of order for the expulsion of an individual treatment and its length.425 from the country to be deferred.419 · A certificate from the medical A foreign national may benefit from such a authorities from his/her country of deferment if: origin proving that the person cannot receive the treatment in · His/her health condition requires his/her country.426 treatment which cannot be refused · An agreement from the health to him/her without serious establishment for the admission of consequences for his/her health the patient on a certain date, signed · And the person concerned is not by the head of the service that will able to get the treatment in the treat the patient.427 country s/he is about to be sent back · An estimate of the cost of the to.420 treatment and proof that the financing of it is guaranteed by the If all the requirements are met, the 428 person. individual will obtain a deferment of expulsion for a maximum of six months 421 , http://www.gouvernement.lu/5702060/Loi- 420http://www.sante.public.lu/fr/prevention/travail/s modifiee-du-29-aout-2008-sur-la-libre-circulation- ervice-sante-migrant/sursis-eloignement/index.html des-personnes-et-l_immigration---TC-au-11- 421 Law on free circulation of 2008, modified by the fevrier-2016.pdf law of 8 March 2017 417http://www.guichet.public.lu/citoyens/fr/organis 422 Ibid. mes/ministere-sante/service-medical- 423 Ibid. immigration/index.html 424 Ibid. 418 Law on free circulation of 2008, modified by the 425 Ibid. law of 8 March 2017 426 Ibid. http://www.gouvernement.lu/5702060/Loi- 427http://www.sante.public.lu/fr/prevention/travail/s modifiee-du-29-aout-2008-sur-la-libre-circulation- ervice-sante-migrant/soins-etrangers- des-personnes-et-l_immigration---TC-au-11- luxembourg/index.html fevrier-2016.pdf 428http://www.sante.public.lu/fr/prevention/travail/s 419http://www.sante.public.lu/fr/prevention/travail/s ervice-sante-migrant/soins-etrangers- ervice-sante-migrant/sursis-eloignement/index.html luxembourg/index.html

82

LUXEMBOURG

As it is nearly impossible to obtain a Committee for HIV, hepatitis and other certificate proving that a treatment is sexually transmissible infections.435 This inaccessible and since the patient has to Committee is mandated to inform the cover the cost of his/her treatment, this public, targeted groups and professionals procedure is extremely restrictive. about all issues regarding these infections, to collaborate with national and Prevention and treatment of international organisations to develop infectious diseases programmes in order to fight HIV, to provide advice on all questions relating to In Luxembourg, the Ministry of Health has this issue, and to propose measures to adopted a national strategy and an action improve the prevention of and fight against plan to fight against HIV/AIDS (2011- infectious diseases.436 2015).429 In this plan, it is stated that migrants face multiple vulnerabilities such as increased risk to infectious diseases.430 The government has assessed the need to raise awareness regarding these diseases and the necessity for these migrants to access free 431 HIV screening tests. People asking for international protection can voluntarily undergo HIV screening tests during the process. No specific mention is made for undocumented migrants. There are national health facilities which provide such services for free and anonymously. There are six of them throughout Luxembourg.432 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 it.433 Nonetheless, the Ministry of Health has recognised that a number of administrative barriers often impede vulnerable groups in accessing treatment when they need it.434 Moreover, in relation to the treatment of infectious diseases in Luxembourg, on 27 February 2015 the government adopted a regulation creating a special Monitoring

429 Ministry of Health of the Grand Duchy of 432http://www.dimps.lu/files/mds-sida-annoncea4- Luxembourg, National strategy and action plan hd-.pdf regarding the fight against HIV/AIDS 2011-2015 433 Op. cit. note 429 http://www.sante.public.lu/fr/publications/s/strategi 434 Op. cit. note 429 e-plan-action-vihsida-2011-2015/index.html 435Regulation of 27 February 2015 , 430 Ibid. http://eli.legilux.public.lu/eli/etat/leg/rgc/2015/02/2 431 Op. cit. note 429 7/n1 436 Regulation of 27 February 2015 , Art.1

83

NETHERLANDS

quality, accessibility and affordability of NETHERLANDS healthcare.438

National Health System Accessing the Netherlands healthcare system Constitutional basis Taking out standard (private) health According to the Dutch Constitution, the insurance, is obligatory for authorised government has a duty to ensure social residents.439 An open enrolment system security for all and to ensure the distribution obliges insurers to accept any application of wealth (Article 20), as well as public for insurance; they cannot “risk assess” to health (Article 22).437 Articles 1 (equal deny coverage to individuals deemed to be treatment), 10 (the right to respect and “high -risk” on account of their age, gender protection of personal privacy) and 11 (the or health profile.440 All insurance providers right to the inviolability of one’s person) are offer the same standard package. This also relevant to the right to health. package includes GP visits, outpatient treatments in hospital, hospitalisation, It is to be noted that, pursuant to Article 120 emergency treatment, transport to the of the Dutch Constitution, it is prohibited hospital, antenatal, delivery and postnatal for the courts to check the constitutionality care, and mental healthcare (individual of the law. psychological consultations).441

Organisation and funding of Dutch Contraception is not included in the basic healthcare system package. Pregnancy termination is not Since 2006, a dual system of public and included either, but is fully reimbursed private insurance for curative care has been under the Long-Term Care Act.442 replaced by a single compulsory health insurance scheme. Competing insurers To cover costs not included in the standard negotiate with providers on price and package, for example physiotherapy or quality, and patients are free to choose the dental care for adults, people older than 18 provider they prefer and join the health years old may opt to take out additional insurance policy which best fits their insurance. The premium for this extra situation. According to the European package is freely established by private Observatory on Health Systems and insurers. Policies, primary care is well developed, with GPs acting as gatekeepers to the The monthly premiums for health insurance system in order to prevent unnecessary use currently (June 2017) range from € 92 to of more expensive secondary care. The €114.95 per month. Prices vary between government’s role is limited to controlling providers, but also depending on age, sex, residence and which formula the individual chooses: access to a limited number of

437http://wetten.overheid.nl/BWBR0001840/geldigh 440Civitas, Health care Systems: The Netherlands , eidsdatum_21-05-2015 By Claire Daley and James Gubb 438 W. Schäfer et al., “Germany: Health system updated by Emily Clarke (December 2011) and review”, Health Systems in Transition , vol. 12, No 1, Elliot Bidgood (January 2013), 2010 http://www.civitas.org.uk/nhs/download/netherland http://www.euro.who.int/__data/assets/pdf_file/000 s.pdf 8/85391/E93667.pdf 441http://www.rijksoverheid.nl/onderwerpen/zorgve 439 Health Insurance Act of 16 June 2005 , Art. 2 rzekering/vraag-en-antwoord/basispakket- http://wetten.overheid.nl/BWBR0018450/Hoofdstu zorgverzekering-2015.html k2/Paragraaf21/Artikel2/geldigheidsdatum_06-02- 442http://www.rijksoverheid.nl/onderwerpen/zorg- 2015 in-zorginstelling/wet-langdurige-zorg-wlz

84

NETHERLANDS contracted care providers (versus a larger or accessible for all children through even unlimited choice), opting in or out of preventive frontline infant consultations (0- (partial) reimbursement of dental care, 4 years) at the Early Childhood clinics, and glasses and the amount of the policy excess according to the national immunisation (see below). In addition, an income- calendar.447 dependent employer contribution is deducted through the employee’s payroll Authorised residents who do not take out and transferred to a Health Insurance Fund. obligatory insurance are proactively contacted by the National Healthcare Authorised residents on a low income are Institute ( Zorginstituut Nederland ), asking eligible for healthcare benefits. A single them to take out insurance within three person can receive help up to € 1,066, months. Those who do not take out couples up to € 2,043 a year.443 Single insurance are fined € 382.50 – up to two people with yearly incomes lower than times – before the institution automatically €27,857 have a right to financial help; for contracts health insurance for them and couples the income ceiling is € 35,116. Only deducts the insurance premiums people with limited capital have a right to automatically from the income of the newly these benefits. insured individual.448 Those who do not pay their monthly premiums face financial When accessing healthcare services and penalties. treatment, people aged 18 or over first need to pay a “franchise ”, a policy excess , which Termination of pregnancy is currently (July 2017) – as defined by law For authorised residents, pregnancy – at least €38 5 a year 444 , but can go up to termination is free at the point of delivery €885 depending on their chosen insurance under the Act on Long-term Healthcare.449 formula (the voluntary excess adding to the For women who are 12 to 16 days pregnant, compulsory excess).445 An increasing there is no waiting period. After 16 days and number of patients facing poverty have up to 13 weeks, there is a “cooling off difficulty paying this franchise. In order to period” of five days between the first pay lower monthly premiums, they often consultation and the termination (as opt for a higher franchise – a tempting offer determined by the 1981 Termination of as long as one does not fall seriously ill. The Pregnancy Act450 ). The gestational limit franchise does not apply to care for minors stated in the Law is 24 weeks (based on (nor does it apply to their dental care), GP foetal viability).451 visits, antenatal care, or for integrated care schemes for chronic diseases (e.g. In case a late termination is needed – after 446 diabetes). Vaccinations are freely 24 weeks – doctors are obliged to report

443http://www.belastingdienst.nl/wps/wcm/connect/ 446http://www.independer.nl/zorgverzekering/info/e bldcontentnl/belastingdienst/prive/toeslagen/zorgto igen-risico.aspx eslag/zorgtoeslag_2016/voorwaarden_2016/inkome 447http://www.rivm.nl/Onderwerpen/R/Rijksvaccina n/bedragen_per_maand tieprogramma/De_inenting/Vaccinatieschema 444https://www.hollandzorg.com/dutch-healthcare- 448http://www.rijksoverheid.nl/onderwerpen/zorgve insurance/public-healthcare/excess rzekering/vraag-en-antwoord/wat-gebeurt-er-als-ik- 445 The amount of the franchise has drastically been niet-verzekerd-ben-voor-de-zorgverzekering.html raised over the past few years: from €150 in 2008, 449 http://wetten.overheid.nl/BWBR0035917/2017- €220 in 2012, €350 in 2013, €360 in 2014, €375 in 07-01 2015 to 385€ in 2016. 450http://wetten.overheid.nl/BWBR0003396/geldigh http://www.rijksoverheid.nl/ministeries/vws/docum eidsdatum_22-04-2015 enten-en- 451New regulation on Late-term Abortions and publicaties/kamerstukken/2015/02/06/kamerbrief- Terminations of Lives of Neonates - 2011 over-verbeteren-kwaliteit-en-betaalbaarheid- http://wetten.overheid.nl/BWBR0003396/2011-10- zorg.html 10

85

NETHERLANDS these to a central committee.452 Under the pocket payment at all (not even a franchise) New Regulation on late-term abortions and is required.456 Termination of Life in Neonates 453 , which entered into force on February 2016, late- As for Dutch residents, GPs are the term termination is authorised when an gatekeepers of access to other healthcare unborn baby has an untreatable disease services. The basket of care is similar to that expected to lead inevitably to its death of the basic package for authorised residents during or immediately after birth, or if an (but, for example, dental care for adults is unborn baby has a disease that has led to also accessible in case of pain or chewing 457 serious and irreparable impairment, where problems ). Upon entry, asylum seekers only a small chance of survival exists. undergo compulsory TB screening. Asylum seekers coming from high-risk countries are A termination may only be performed by a offered voluntary follow-up screening for a physician in a licensed hospital or clinic and period of two years.458 ha s to ensure that “ an adequate opportunity is made available for providing the woman Pregnant asylum seekers and refugees with responsible information on methods of Pregnant asylum seekers and refugees have preventing unwanted pregnancies ”.454 access to antenatal, delivery and postnatal healthcare free at the point of delivery. Access to healthcare for Because of their specific vulnerabilities, migrants those women are entitled to more intensive antenatal care (with more consultations). Asylum seekers, refugees and persons They are also entitled to access pregnancy eligible for subsidiary protection termination services free of charge. However, asylum seekers and refugees aged As authorised residents, recognised 21 and over have to pay for contraceptives refugees and people who have obtained themselves.459 subsidiary protection have the same duties and rights as Dutch citizens. Asylum Children of asylum seekers seekers access healthcare through a parallel scheme of primary care contracting, All children can access free vaccination at organised by Arts en Zorg (from January preventive frontline infant consultations (0- 2018)455 , a non-profit insurance company 4 years), including children of asylum commissioned by the Central Agency for seekers. For other care (including the Reception of Asylum Seekers ( Centraal vaccinations after the age of 4), they can Orgaan opvang asielzoekers – COA). On only access care under the same specific the one hand, this means that they can only scheme for asylum seekers as their parents. turn to GPs, physiotherapists, dentists, hospitals and pharmacies that are contracted. On the other hand, no out-of-

452http://www.rijksoverheid.nl/onderwerpen/levense 457http://www.rzasielzoekers.nl/dynamic/media/28/ inde-en-euthanasie/late-zwangerschapsafbreking- documents/rzaenbijlagen/Bijlage_5_noodhulplijst_ en-levensbeeindiging-bij-pasgeborenen 2015.pdf 453 Op. cit. note 451 458http://www.rzasielzoekers.nl/dynamic/media/28/ 454 Termination of Pregnancy Act of 1 May 1981 , documents/overige_documenten/2012_factsheet_M Article 5(2a), enzis_HR.pdf http://wetten.overheid.nl/BWBR0003396/geldighei 459 S. Goosen, “Induced abortions and teenage births dsdatum_21-05-2015 among asylum seekers in the Netherlands: analysis 455 http://www.rzasielzoekers.nl/ of national surveillance data”, Journal of 456http://www.rzasielzoekers.nl/home/zorg-voor- Epidemiology and Community Health , 2009 asielzoekers.html http://www.ggdghorkennisnet.nl/?file=1204&m=13 10635532&action=file.download

86

NETHERLANDS

Undocumented migrants reimbursed for the 31 hospitals, which entered into an agreement with the Undocumented migrants cannot take out healthcare authorities. health insurance, even with an authorisation for temporary stay. Indeed, the Linkage Act In practice, there are many barriers (e.g. of 1998460 linked the right to state medical GPs who refuse patients because they refuse insurance to authorised residency. They to use the reimbursement scheme or have a right to emergency care, and because the patient cannot pay the “medically necessary care” (including all remaining 20% of the consultation fee, lack antenatal and delivery care), as well as care of knowledge of the reimbursement needed in “situations that would jeopardise scheme). In 2014, the authorities drafted a public health” .461 short document to help healthcare professionals determine who is In 2007, an independent commission of undocumented 464 , although the language medical (and social and legal) experts, used is rather stigmatising.465 The National clearly defined “medically necessary Ombudsman also confirmed the existence care” 462 : doctors must provide adequate and of barriers to healthcare for undocumented appropriate care by following the same people in 2013.466 guidelines, protocols and code of conduct that medical and academic professional Before 2014, contracted pharmacies could organisations adhere to in care for any other recover between 80% and 100% of all the patient. Continuity of medical care should costs for undocumented migrants who were not be affected by uncertainty about the unable to pay. However, since January duration of the patient’s stay in the 2014, a €5 payment for every Netherlands. Doctors and healthcare pharmaceutical prescription has been institutions should focus primarily on the imposed. Several support organisations medical and healthcare-related aspects and paid the €5 for those who needed a lot of not on the financial aspects and funding medication. As a result of their advocacy issues. work, some municipalities agreed to start an emergency fund, to compensate the support According to the Dutch authorities 463 , organisations which had covered the costs. undocumented migrants are expected to pay For instance, in 2015, Amsterdam signed a for treatment themselves, unless it is proven covenant with pharmacies and support that they have difficulty in paying. In that organisations (including Doctors of the case, GPs can recover 80% of the cost of a World) to manage this fund for patients who consultation for an undocumented patient cannot pay. However, various hurdles (the full cost being € 27.63 for a short remain in order for undocumented migrants consultation and € 54.27 for a consultation to benefit from such a fund. that takes longer than 20 minutes) from the healthcare authorities. In the case of The European Committee of Social Rights secondary care, medical costs are only ruled in 2014 that the Dutch government

460 The Linkage Act of 26 March 1998 , www/documenten/rubrieken/verzekering/onverzeke http://wetten.overheid.nl/BWBR0009511/geldighei rbare-vreemdelingen/1307-hoe-stel-ik-vast-dat- dsdatum_02-06-2015 iemand-illegaal-in-nederland- 461 Foreigners Act – 2000 verblijft/Hoe+stel+ik+vast+dat+iemand+illegaal+in http://www.refworld.org/docid/3b5fd9491.html +Nederland+verblijft.pdf 462http://www.pharos.nl/documents/doc/webshop/ar 465http://picum.org/picum.org/uploads/file_/Leaflet ts_en_vreemdeling-rapport.pdf _NL_forPrinting_7Nov.2014.pdf 463http://www.zorginstituutnederland.nl/verzekering 466Medische zorg vreemdelingen. Over toegang en /onverzekerbare+vreemdelingen continuïteit van medische zorg voor asielzoekers en 464http://www.zorginstituutnederland.nl/binaries/co uitgeprocedeerde asielzoekers ntent/documents/zinl-

87

NETHERLANDS should ensure the provision of the necessary Children of undocumented migrants food, water, shelter and clothing to adult All children can access free vaccination at migrants in an irregular situation and to preventive frontline infant consultations (0- asylum seekers whose applications for 467 4 years), including children of protection have been rejected. The Dutch undocumented parents. For curative care, Association of Municipalities ( Vereniging and for vaccinations after the age of four, Nederlandse Gemeenten ) has taken the the children of undocumented migrants face same view concerning rejected asylum 468 the same barriers to care as their parents. If seekers. they get Dutch nationality, they will be Undocumented pregnant women entitled to free healthcare through the regular insurance scheme. They have access to antenatal, delivery and postnatal care, but this access is not free at EU citizens the point of use. Undocumented migrants In accordance with Directive 2004/38/CE, are expected to pay for treatment EU citizens are considered as themselves, unless it is proved that they “undocumented” after three months of stay cannot pay. In the case of pregnancy and in the Netherlands without health coverage delivery, authorities can decide to and sufficient resources. If EU citizens in reimburse contracted hospitals and the Netherlands do not have a European pharmacies up to 100% of the unpaid bills. Health Insurance Card (EHIC), they only However, it sometimes happens that have free access to emergency care.471 undocumented women are urged to pay There are no specific legal provisions for straight away in cash, requested to sign up children of destitute EU citizens. for payment by instalments or receive a bill and reminders at home, and sometimes are Unaccompanied minors followed by debt collectors contracted by healthcare providers. Unaccompanied children seeking asylum have access to healthcare services on the Pregnant women can obtain a postponement same basis as other children. They receive of their departure from the Netherlands extra assistance in separate reception under Article 64 of the Foreigners Act 469 facilities.472 They are attributed a guardian due to being unfit to travel six weeks before from the Nidos Foundation, who is and six weeks after giving birth.470 During responsible for accommodating the children this period, women have access to and providing them with a health insurance. healthcare under the same scheme as If their application is rejected, they keep pregnant asylum seekers. their right to live in the asylum reception centres, to benefit from healthcare services Maternity care, contraception and and their right to education until departure, pregnancy termination have to be fully paid according to Article 6 of the Measures for by undocumented women. regarding asylum seekers and other

467European Committee Of Social Rights, 469Foreigners Act – 2000 Conference of European Churches (CEC) v the http://wetten.overheid.nl/BWBR0011823/Hoofdstu Netherlands , 1 July 2014, k6/Afdeling2/Artikel64/geldigheidsdatum_27-04- http://www.coe.int/t/dghl/monitoring/socialcharter/ 2015 Complaints/CC90Merits_en.pdf 470 Foreigners Circular 2000, A3/7.3.2.6 468https://www.vng.nl/onderwerpenindex/integratie- 471http://www.pharos.nl/documents/doc/pharos_ver en-asiel/vreemdelingenzaken/nieuws/gemeenten- slag_expertmeeting_gezondheid_en_zorggebruik_ willen-uitgeprocedeerde-asielzoekers-opvang- midden-en_oost-europese_migranten-8juni2012.pdf kunnen-bieden 472 http://www.coa.nl/nl/asielzoekers/wonen-op-een- azc/kind-in-de-opvang

88

NETHERLANDS

473 categories of foreign nationals. In order although not at imminent risk of dying, to determine minors’ age, medical would face a real risk, on account of the examination methods as X-rays of the wrist absence of appropriate treatment in the and collarbone are often used. MdM receiving country or the lack of access strongly criticises these practices, to such treatment, of being exposed to a considered as imprecise, unethical and 474 serious, rapid and irreversible decline in unreliable. his/her state of health resulting in intense suffering or to a significant Protection of seriously ill reduction in life expectancy .477 Where, foreign nationals after the relevant information has been examined, serious doubts persist Case law of the European Court of Human regarding the impact of removal on the rights persons concerned – on account of the general situation in the receiving Over the last decades, the European Court country and/or their individual situation of Human Rights (ECtHR) has ruled several – the returning State must obtain times in cases related to the expulsion of individual and sufficient assurances seriously ill migrants. Article 3 of the from the receiving State, as a European Convention on Human Rights precondition for removal, that (ECHR) protects a person from being appropriate treatment will be available expelled, when there are substantial and accessible to the persons concerned grounds for believing there is a real risk of so that they do not find themselves in a being subjected to an inhuman or degrading situation contrary to Article 3 .478 The treatment. Until December 2016, in cases decision thus shows that the question of concerning the removal of a foreigner availability and accessibility should be suffering from serious illness the ECtHR part of the assessment whether a used to rule that only in a very exceptional seriously ill migrant needs to be granted case a medical condition may raise an issue protection from removal from The under Article 3. This "very exceptional Netherlands. case" only applied to a person at imminent risk of dying.475 In a recent decision in the The Netherlands has integrated the decision case Paposhvili v. Belgium of 13 December of the ECtHR in the Foreigners Act of 2000 2016476 the ECtHR has departed from the through an amendment on the 29 August excessively restrictive approach. 2017.479

In the case Paposhvili v. Belgium the If a seriously ill foreigner can prove that ECtHR ruled that article 3 should be his/her condition requires necessary understood to refer to situations medical treatment and that there is reason to involving the removal of a seriously ill believe that the necessary medical care is person in which substantial grounds not available in his/her country of origin, have been shown for believing that s/he, s/he can be granted a postponed departure, based on article 64 of the Foreigners Act of

473 Measures regarding asylum seekers and other 476 http://hudoc.echr.coe.int/eng?i=001-169662 categories of foreign nationals 477 Par. 183, Paposhvili v. Belgium http://wetten.overheid.nl/BWBR0017959/geldighei 478 Par. 187, Paposhvili v. Belgium dsdatum_22-04-2015#HoofdstukIII_Artikel6 479 WBV 2017/8 474http://www.vluchtelingenwerk.nl/feiten- https://zoek.officielebekendmakingen.nl/stcrt-2017- cijfers/alleenstaande-minderjarigen 50078.html 475N. v. The United Kingdom , http://hudoc.echr.coe.int/eng?i=001-86490

89

NETHERLANDS

2000.480 During this postponed departure, medical treatment. For this procedure, the Service of Return and Departure ( Dienst previous authorisation to enter the Terugkeer & Vertrek _DT&V) will examine Netherlands is not required. the availability and accessibility of the 484 treatment. Once the application process is completed with the Immigration and Unfit to travel and medical emergencies Naturalisation Service (IND), the State Medical Service (BMA) issues an opinion According to Article 64 of the Foreigners determining whether there is a medical 481 Act of 2000 , in conjunction with Article emergency, whether the applicant is unable 482 3.4 of the Foreigners Decree 2000 , the to travel due to this emergency, and whether expulsion of undocumented migrants can be the country of origin offers the necessary suspended as long as their (or a family medical treatment. Previously, no mention member’s) state of health would make it was made of verification if there was “inadvisable” for them to travel. This means effective access. Since the decision that “ termination of medical treatment regarding the case Paposhvili v. Belgium an would lead to death, disability or another assessment on the individual availability form of serious psychological or physical and accessibility has to be made. damage within three months ”.483 As this suspension of expulsion is only applicable Seriously ill undocumented migrants have a in emergencies, it is usually granted for six legal right to await the decision on their months. However, the law states that a request for a residence permit on medical postponed departure can be granted for a grounds in a reception facility for asylum maximum of one year. seekers 485 , although in practice this does not often happen. People who have been admitted involuntarily to a psychiatric hospital are In 2013, the National Ombudsman 486 automatically granted a postponed condemned the many barriers to accessing departure for the period of the the procedure and effective protection: the hospitalisation for a maximum of six need for formal proof of identity and months. After six months, the situation is medical declarations from all the healthcare reassessed, and if the person is still providers involved, issued within the last hospitalised, the postponed departure will six weeks, makes the application process be extended for six months. particularly difficult. Furthermore, being allowed to stay in a reception facility while Residence permit for medical treatment the application is processed is only possible after one year of postponed departure if no appeal with the Council of State has (Article 64) been lodged against a negative decision on After one year of postponed departure due a request for asylum. to a medical emergency under Article 64, patients can file for a residence permit for

480 Foreigners Act Op. cit. note 448 485https://www.ind.nl/EN/Documents/2009%20EA 481 Foreigners Act Op. cit. note 448 UT%20Motie-Spekman.pdf 482 Foreigners Decree – 2000 486 Letter from the National Ombudsman to the http://wetten.overheid.nl/BWBR0011825/Hoofdstu Secretary of State for Security and Justice, 4 k3/Afdeling2/Paragraaf1/Subparagraaf5/Artikel346 September 2013, /geldigheidsdatum_27-04-2015 http://www.inlia.nl/uploads/File/Brief%20aan%20st 483Foreigners Circular 2000, Article B8/9.1.3, aats%20Teeven%204%20sep%202013%20zorgen http://wetten.overheid.nl/BWBR0012289/B8/9/91/9 %20over%20motie_spekman%20opvang%20voor 13/Tekst/geldigheidsdatum_27-04-2015 %20zieke%20asielzoekers.pdf 484 https://ind.nl/documents/7050.pdf

90

NETHERLANDS

In a report from March 2015 487 , the financial resources or health coverage Ombudsman also held a critical view cannot access testing or treatment. regarding the assessment of the BMA about the accessibility and availability of care in HIV, hepatitis and STI screening can be the country of origin: the sources of the done at a GP’s office or at the He alth Centre information used about the country of origin for Asylum seekers. Furthermore, a national remain anonymous. This makes it “complementary sexual healthcare impossible to determine whether the person subsidies” system allows municipal health who collects the information is qualified services (Gemeentelijke and uses objectively verifiable information- Gezondheidsdienst _GGD) to offer gathering methodologies and for what level anonymous and free-of-charge STI of remuneration, etc. As a result, the screening to most at-risk populations in STI Ombudsman raised serious questions about polyclinics. The definition for these the quality of the data used. The populations is broad (e.g. it includes 489 Ombudsman recommended that the BMA undocumented migrants , men having sex should take a more critical attitude towards with other men, sex workers and their the quality of the research, and that the IND clients, people coming from a region where should be more critical about BMA an STI is endemic, anyone who has had decisions as well. more than three sexual partners in the last six months, anyone whose partner is Prevention and treatment of considered at risk, and anyone under 25 years old 490 ). However, in the future, the infectious diseases number of groups who can access these HIV and hepatitis screening and treatments services could be restricted.491 are included in the basic package of the compulsory health insurance.488 Therefore, Migrant suffering from tuberculosis every authorised resident in the Netherlands Migrants (and their family members) is entitled to be fully reimbursed by his/her suffering from TB will receive treatment insurance company for costs related to HIV, until contamination danger has ceased and hepatitis and STI screening, treatment and will automatically be granted a care (provided that the individual does not postponement of their departure from the have any outstanding “ franchise ” costs to Netherlands under Article 64 of the pay, in which case these costs will be borne Foreigners Act during the treatment.492 The by the individual). postponement ends when the migrant withdraws from the treatment or when the Treatment for these diseases is certainly contamination danger has ceased. part of t he “medically necessary care” to which undocumented third-country nationals are entitled, even if many barriers remain in practice. EU citizens with no

487Care across borders, report following a complaint comparative 10-country legal survey , Aids action to the Medical Advice Bureau, National Europe, 2016 Ombudsman, Marche 2015 http://www.aidsactioneurope.org/en/publication/acc https://www.nationaleombudsman.nl/uploads/rappo essing-hiv-prevention-testing-treatment-care-and- rt/Rapport%202015- support-europe-migrant-irregular 053%20BMA%20en%20IND%20webversie.pdf 490https://www.soaaids.nl/nl/professionals/interventi 488http://www.soaaids.nl/nl/professionals/interventi es/structurele-interventies/aanvullende-seksuele- es/structurele-interventies/toegang-soa-en-hiv-zorg gezondheidszorg 489Inverardi, Gaia, Accessing HIV prevention, 491http://www.ggdghorkennisnet.nl/?file=13972&m testing, treatment care and support in Europe as a =1375704358&action=file.download migrant with irregular status in Europe: A 492 Foreigners Circular 2000, A3/7.3.2.7

91

NETHERLANDS

Medical Health Services in detention centres

Undocumented migrants in detention centres Undocumented migrants who are detained prior to a forced removal from the Netherlands receive basic medical care through the Medical Service of detention center (DJI). In cases of special psychiatric care, a transfer will be made to a Penitentiary Psychiatric Center (Penitentiair Psychiatrisch Centrum : PPC) 493 . Prior to any form of detention, the principle of proportionality dictates that the measure should achieve the stated aim (which is the forced return of undocumented migrants) and no less severe measure is possible to achieve this aim. In practice, detention of asylum seekers or undocumented migrants at the border is automatic and the test of proportionality is not carried out properly. Once a detention measure has been applied, there could occur urgent reasons leading to the conclusion that a person is not fit to stay in detention or that special care is needed (detentieongeschiktheid ). The Medical Service in the detention center carries out a medical examination. A first critical note is that the examination to determine whether one is fit to stay in detention, is carried out once the person is already detained, whereas this examination should be prior to the application of the detention measure. Secondly, in practice it is very difficult to request the medical examination itself.

493 There are Penitentiary Psychiatric Centers in Amsterdam, Den Haag, Vught and Zwolle.

92

NORWAY

responsibility for the provision of health NORWAY care is decentralised. National Health System Regulation of healthcare At the national level 498 , The Ministry of Constitutional basis Health and Care Services (HOD) is responsible for the healthcare policy and is The Norwegian Constitution contains only the legislative authority. one direct mention of access to healthcare in its Article 104, which affirms the right of The Norwegian Medicines Agency children to social and health security.494 (NoMA), subordinated to the HOD, regulates matters concerning medication However, human rights can be invoked as and its price. an indirect source of right to healthcare. The Norwegian Constitution promotes human The Ministry of Labour is indirectly rights in its Article 2 and a series of articles involved in the governance of healthcare, on human rights were enshrined in articles mainly through the Labour and Welfare 92 to 113 of the Constitution of 13 May Administration (NAV). 2014. The Directorate of Health and Care Norway is also part of international human services 499 and the County Governor are in rights treaties, which, if in conflict with the charge of carrying out of the policies laid national law, will take priority over it, down by the Ministry. pursuant to Section 2 of the 1999 Norwegian Human Rights Act.495 The The Norwegian Health Economics International Covenant on Economic, Administration (HELFO) is a department of Social and Cultural Rights in particular The Directorate of Health and Care contains provisions regarding to health, as Services, which manages the National the right of everyone to “the enjoyment of Insurance Scheme. the highest attainable standard of physical and mental health” .496 Finally, the Norwegian Board of Health Supervision 500 , organised under the Organisation and funding of Norwegian Ministry of Health and Care Services, healthcare system supervises the provision of health and social services. Organisation Provision of healthcare The healthcare system in Norway is a public The state is responsible for the specialist responsibility. It is organised into three health services.501 Specialist services 497 levels: national, regional and local. While comprises hospital services, laboratory and health care policy is controlled centrally, radiology services, urgent care and health

494 Norwegian Constitution and Specialist Health Care Act 1999 Section 2-1 e. https://lovdata.no/dokument/NL/lov/1814-05-17 Chapter 2 495http://app.uio.no/ub/ujur/oversatte-lover/data/lov- https://lovdata.no/dokument/NL/lov/1999-07-02-61 19990521-030-eng.pdf 498http://www.hspm.org/countries/norway08012014 496ICESCR , Article 12 /livinghit.aspx?Section=2.1%20Overview%20of%2 http://www.ohchr.org/EN/ProfessionalInterest/Page 0the%20health%20system&Type=Section s/CESCR.aspx 499 https://helsedirektoratet.no/ 497Municipal Health and Care Act Section 3-4 500https://www.helsetilsynet.no/Norwegian-Board- Chapter 3 of-Health-Supervision/ https://lovdata.no/dokument/NL/lov/2011-06-24-30 501 Specialist Health Care Act Op. cit. note 497 Section 2-1.

93

NORWAY related transportation like the ambulance Accessing Norwegian healthcare system system.502 All citizens and authorised residents in Norway is divided into four regions. Each Norway are entitled to public health care, region has a Regional Health Authority according to the Act of 2 July 1999 n°63 (RHA), which provides the specialist relating to Patients' Rights (Patient’s Rights healthcare. 503 As every patient has the right Act).512 to necessary and emergency healthcare from This entitlement is also included in social the specialist health care services 504 , if the insurance legislation (the National Regional Health Authority cannot provide Insurance Act of 1997) and in healthcare it, the patient has the right to necessary legislation on care funded by the healthcare from a private provider.505 municipalities (the Municipal Health and The 428 municipalities 506 are in charge of Care Act of 2011) and specialist care (the financing, planning, organising and Specialist Health Care Act of 1999). These operating the primary health care according acts also delineate the scope of coverage by to local demand.507 The state finances a this right. significant part of the municipalities’ As stated in the Pati ent’s Rights Act, healthcare services through direct subsidies Section 1-2, the scope of coverage by the from the State Budget. 508 The Norwegian healthcare system can be municipalities have a great deal of freedom extended, as an exception, “for persons who in organising health services. are not Norwegian nationals or who do not Counties have a limited role in the provision reside permanently in the realm.” of healthcare services. They are mainly Every Norwegian resident has the right to a responsible for the provision of statutory permanent GP and to change doctor twice a dental care and have some responsibilities year. 513 related to public health.509 It is to be noted that somatic and mental Funding health situations are equalised. 514 This As a public commitment, healthcare in means in principal there is no difference in Norway is mostly publicly financed by the right to health care regarding somatic or state, counties and municipalities mental illnesses. taxation.510 The rest of the funding comes from income-related employee and The National Insurance Scheme employer contributions and, in a much Pursuant to Section 2-1 of the National lesser extent, from out-of-pocket- Insurance Act 515 , every person residing in 511 payments. the realm is a mandatory member of the National Insurance Scheme (NIS).

502 Specialist Health Care Act Op. cit. Note 497 509 Op. cit. note 497 Section 2-1 a. 510http://www.euro.who.int/__data/assets/pdf_file/0 503 Ibid. 018/237204/HiT-Norway.pdf 504 Patient´s Rights Act, Section 2-1 b 511Op. cit. note 497 https://lovdata.no/dokument/NL/lov/1999-07-02-63 512 Patien t’s rights Act Op. cit. note 504 505 Ibid. 513 Patient´s Rights Act op. cit. note 504 Section 2- 506http://kartverket.no/Kunnskap/Fakta-om- 1c§2 Norge/Fylker-og-kommuner/Tabell/ 514Syse, Aslak,”Pasient - og brukerrettighetsloven 507http://www.legemiddelverket.no/english/the- med kommentarer.” Gyldendal Norsk forlag, norwegian-health-care-system-and-pharmaceutical- Norway, Oslo, Fourth edition. 2015, p. 145 system/sider/default.aspx 515National Insurance Act - 1997 508 The Municipal Health and Care Act Op. cit. note https://lovdata.no/dokument/NL/lov/1997-02-28-19 497 Section 11-5.

94

NORWAY

However, one must have an authorised The scope of the NIS coverage is not residency in Norway to be a member of the precisely defined. In practice, it also NIS. covers 527 : Tourists are not covered by the NIS, Ø Hospital and ambulatory care, if it is however, they may be covered by EEA- essential for the patient regulations or a reciprocal agreement Ø Emergency care between Norway and their country of Ø Rehabilitation origin.516 Ø Drugs included in the “ blue list ” i.e. approved prescription drugs for The National Insurance Scheme covers the chronically sick persons or long- costs related to healthcare service for all term illness patients (the national citizens who are members of NIS and their insurance scheme covers from 62% surviving spouse and child if they reside in to 100% of the price 528 ) 517 Norway. Ø Dental care for children and vulnerable groups The scope of NIS coverage is determined by Ø Medical eye-care (glasses excluded) the Parliament, in accordance with the Ø Home nursing National insurance Act.518 It includes: Ø Examination and treatment by a Cost sharing doctor 519 , a psychologist 520 and GP and outpatient specialist visits require under certain circumstances a flat fee co-payments (in 2017 it costs chiropractor 521 respectively NOK152 (€16.3529 ) Ø Physiotherapy 522 and NOK345 (€ 36) per visit).530 Ø Treatment related to language and speech defects 523 Covered prescription drugs also require a Ø Treatment by an orthopaedist 524 flat fee contribution of 39% of the cost of 531 Ø Tests and examinations at private the prescription, up to NOK520 (€ 54.3) laboratories and Roentgen institutes, per prescription, as do radiology and including x-rays 525 laboratory tests (of NOK245 (€26.3) and 532 Ø Dental care but only if related to NOK54 (€ 5.6) in 2017, respectively). 526 diseases Certain groups of people are exempted from cost-sharing provisions 533 :

516 Norwegian state party´s report 2012-10-29 UN´s 528(p.30) Committee on Economic, Social and Cultural Rights https://legemiddelverket.no/Documents/English/Pri para 395 ce%20and%20reimbursement/PPRI_Pharma_Profil 517 National Insurance Act Section 5-2 e_Norway_20150626_final.pdf 518 Op. cit. note 515 529 Exchange rate for July 2017 519 National Insurance Act Section 5-4 530https://helsenorge.no/betaling-for- 520 National Insurance Act Section 5-7 helsetjenester/betaling-hos-lege 521 National Insurance Act Section 5-9 531 https://helsenorge.no/legemidler/blaresept 522National Insurance Act Section 5-8 532 The Commonwealth Fund, 2015 International 523National Insurance Act Section 5-10 Profiles of Health Care Systems, Januray 2016, 524 National Insurance Act Section 5-10-a p.134 525 National Insurance Act Section 5-5 533 Ringard Å, Sagan A, Sperre Saunes I, Lindahl 526 National Insurance Act Section 5-6 AK. Norway: Health system review. Health Systems 527http://www.hspm.org/countries/norway08012014 in Transition, 2013, p. 58 /livinghit.aspx?Section=3.3%20Overview%20of%2 http://www.euro.who.int/__data/assets/pdf_file/001 0the%20statutory%20financing%20system&Type= 8/237204/HiT-Norway.pdf Section

95

NORWAY

Ø Children under the age of 7 are Ø Services from psychologists exempted from cost-sharing for Ø Important medication and medical treatment received from a physician equipment or a physiotherapist, essential drugs Ø Transport costs and travel expenses Ø Radiological examination and Ø Children under the age of 16 receive treatment free physician treatment and access Ø Laboratorial tests to drugs from the “blue list” , and are Ø Polyclinic healthcare exempted from cost-sharing for travel expenses.534 This amount is decided by the Parliament Ø Children under the age of 18 are every year. In 2017, the amount was set at exempted from co-payments for NOK2205 537 (€237538 ). psychotherapy and dental treatment Ø Pregnant women receive medical Once this limit is reached, the national examinations during and after Insurance Scheme issues an exemption card and covers its holder’s health expenses for pregnancy for free 539 Certain services are free of charge and do the rest of the calendar year. Cost-sharing not require co-payment: for children under the age of 16 is included with one parent’s ceiling: they do not pay Ø Consultations for prevention and the cost-sharing fee for the first ceiling.540 treatment of transmittable diseases A second ceiling is also set every year by and treatment of sexually 541 transmitted diseases the Parliament for costs concerning :

Ø Hospital admissions and inpatient Ø Dental care (only related to health treatment issues for special groups of persons)

Ø Child health clinics and school Ø Physiotherapy health clinics in which all children Ø Fees for accommodation in can be examined and vaccinated rehabilitation centres Ø Treatment abroad Services provided by non-contracted private providers and goods and services As of 2017, the amount of the second excluded from the statutory coverage have ceiling was set at NOK1990 542 (€219.3). to be fully paid for.535 These two ceilings are not related to Cost shared ceiling individual income. A cost-shared ceiling was introduced in the The Ministry of Health issues regulations 1980s to limit individual’s heal thcare 543 expenditure. With this free pass system, concerning deductible plans personal contributions are limited to a There is also a safety net: if the treatment is certain amount per year for the following 536 necessary, but not mentioned in the goods and services : National Insurance Act, the National Ø Services from doctors Insurance Scheme may cover the costs for

534 Patient’s travel regulation – 2015, §24 539 National Insurance Act Section 5-3§3 https://lovdata.no/dokument/SF/forskrift/2015-06- 540 Op. cit. note 533, p. 60 25-793 541 National Insurance Act Section 5-3§2 535 Op. cit. note 533, p. 66 542https://helsenorge.no/betaling-for- 536 The National Insurance Act Section 5-3§1 helsehjelp/frikort-for-helsetjenester 537https://helsenorge.no/betaling-for- 543 National Insurance Act Section § 3-5 last helsehjelp/frikort-for-helsetjenester paragraph 538 Exchange rate of January 2017

96

NORWAY this treatment as well, under certain Moreover, everyone is entitled to an conditions set forth by the Ministry of assessment of his/her health needs. 550 Health.544 The Norwegian government has many Healthcare providers have to inform the times stated that “it is not […] permitted to patients about the duty to pay and to refuse to give emergency health care to a indicate an approximately amount before person on the basis that he or she is unable they provide health services. They cannot to pay” .551 claim payment in advance.545 In Circular letter I-2011-5552 chapter 3, the Individuals who are not able to pay the Ministry of Health specifies that the patient charge can apply for social support, healthcare provider cannot claim payment according to the Social Care Act. 546 This in advance for specialist health care, which Act applies to all persons residing in the cannot be postponed. realm 547 , although exceptions can be made regarding people who do not reside Barriers to access to healthcare permanently in the realm. Compared to other countries, Norway has long waiting times for hospital treatment, Voluntary health insurance especially for elective surgery.553 As, in principle, all Norwegians are covered by the public insurance scheme, voluntary Another difficulty in access to healthcare is health insurance does not play a significant related to the sometimes long distances role in the Norwegian health system. between populated areas in Norway and the lack infrastructures connecting some of Most voluntary health insurance schemes them. People living in rural and remote offer supplementary cover and shorter parts of Norway may experience difficulties waiting times for publicly covered services and have to travel longer to access and specialist consultations in private healthcare. GPs are fairly well distributed facilities.548 across the country, but practising specialists are mostly concentrated in big urban areas. Urgent medical assistance GPs in remote areas often have to treat Everyone, independently of his/her conditions that would be handled by immigration or insurance status, is entitled hospitals in other parts of the country.554 to emergency healthcare and care that cannot wait.549 This applies both to somatic and mental health. The determination of the urgency of the situation is made by the medical personnel.

544 National Insurance Act Section 5-22 https://www.regjeringen.no/no/dokumenter/i- 545 Søvig, Karl Harald. ”Tilgang til velferdstjenester 52011-helsehjelp-til-personer-uten-fas/id662225/ for irregulære migranter etter det norske regelverket 550 Ibid. I: Eksepsjonell velferd? Irregulære migranter i det 551 Norwegian state party´s report 2012-10-29 UN´s norske velferdssamfunnet. Bendixen, Synnøve K Committee on Economic, Social and Cultural Rights and others (Red). Norway, Oslo. 2015, p. 56 para. 395 546 Social Care Act Sections 18 & 19. 552Op. cit. Note 549 https://lovdata.no/dokument/NL/lov/2009-12-18- 553http://www.oecd.org/norway/Health-at-a-Glance- 131 2015-Key-Findings-NORWAY.pdf 547 Ibid. Section 2. 554http://www.hspm.org/countries/norway08012014 548 Op. cit. note 532 /livinghit.aspx?Section=7.3%20User%20experience 549 Circular letter I-2011-5 chap 2.1 %20and%20equity%20of%20access%20to%20heal th%20care&Type=Section

97

NORWAY

Access to healthcare for cover health care regulated in chapter 5 of 560 migrants the National Insurance Act if it is acute care.561 The Directorate of Health and Asylum seekers and refugees Social Care specified that this regulation applies solely for people who All Norwegian nationals and authorised unsuccessfully applied for asylum, not to all residents are entitled to public healthcare. undocumented migrants. As authorised residents pursuant to the Pregnant asylum seekers and refugees Immigration Act 555 , asylum seekers and refugees are entitled to the same access to Pregnant woman seeking asylum are healthcare as Norwegian citizens 556 , though entitled to the same access to healthcare with some exceptions related to the than Norwegian women affiliated to the National Insurance Scheme.557 National Insurance Scheme, though with some minimal exceptions.562 During the transit phase before being transferred to a reception centre, They have access to contraceptive immigrants are obliged to undertake a counselling and to pregnancy termination health examination at the transit reception free of charge. They have to pay a fee of centre. The main purpose of this measure is NOK150-200 (€16-23) for a GP to detect infectious or severe diseases as consultation. 558 tuberculosis. Rubella vaccines are offered free of charge to any woman of childbearing age who does During the three first month of the asylum 563 application, another country can request the not have immunity against rubella. responsibility to consider it. Pursuant to the Children of asylum seekers and refugees “Dublin III” European Regulation 559 , only one country can examine an asylum As authorised residents, children of asylum application. Thus, if this occurs, the asylum seekers have the same access to public seeker will lose his/her status of authorised health care, medical and dental care as 564 resident in Norway and every right attached children of Norwegian nationals. to it. Undocumented migrants Asylum seekers whose application received Pursuant to the Regulation 1255 on the right a final refusal are considered as to healthcare for people without a undocumented migrants regarding access to permanent residency in Norway of 2011 565 , healthcare. Yet, the NIS can financially

555 Immigration Act - 2008 558http://www.euro.who.int/__data/assets/pdf_file/0 https://www.regjeringen.no/en/dokumenter/immigr 018/237204/HiT-Norway.pdf, p. 144 ation-act/id585772/ 559 Dublin III Regulation -2013 556 The Patient´s Rights Act Section 1-2, The 560 The Patient´s Rights Act Regulation 1255 Section 2, and the Specialist Health 561 FOR-2008-05 §2 Care Act Chapter 5, Circular letter I-2/2008 chapter 562 The Parliament has delegated regulation 2 competence to the Government according to 557 The Parliament has delegated regulation Folketrygdloven § 2-16, and FOR-2008-05-14-460. competence to the Government according to The 563 Public Insurance Scheme Act Section 2-16, and http://www.euro.who.int/__data/assets/pdf_file/001 FOR-2008-05-14-460.Ordinance on Insurance 8/237204/HiT-Norway.pdf, p.126 Coverage for Asylum Seekers and their Family 564 Op. cit. note 542 Members - 2008 565 Regulation 1255 on the right to healthcare for https://lovdata.no/dokument/SF/forskrift/2008-05- people without a permanent residency in Norway of 14-460 16th December 2011 , implemented on 1 January 2012

98

NORWAY undocumented migrants are only entitled to severe disability or serious injury or pain emergency healthcare 566 , and to “most could appear within three weeks. necessary healthcare” .567 Pursuant to section 5 of the 1255 However, no provision prohibits from Regulation 573 , medical care that cannot wait providing healthcare to undocumented also includes: migrants. · necessary care for new-borns The right to emergency healthcare covers · abortion, and both the primary and the specialist · healthcare related to control of 568 healthcare. It applies to both somatic and communicable diseases, which mental health. Undocumented migrants includes evaluation, treatment and have the same right as every other citizen in care. Norway when it comes to quantity and quality of healthcare. They also have the Furthermore, if an undocumented migrant right to examination and a right to access suffers from a mental illness and is an the documents and information about their “evident and serious danger” for himself condition. If necessary, supplementary and others 574 , he will be entitled to, and can information about the patient shall be be forced to, get mental healthcare gathered. 569 regardless of the “most necessary healthcare, which cannot be postponed” Healthca re is considered “most necessary” threshold. when it cannot be postponed without imminent risk of death, permanent severe Payment of health services disability, serious injury or pain.570 Undocumented migrants have to pay for all It is meant as a right to healthcare when the the healthcare goods and services they patient is at a stage in which healthcare is receive. However, the healthcare provider necessary, but the state of the patient is not cannot claim payment in advance if it is critical at the time of the health evaluation. emergency care or most necessary 575 Hence, if it is necessary to treat the healthcare, which cannot be postponed. condition during the timeframe of three Besides, some exemptions exist for care weeks determined by the Ministry of received by children and pregnant women. Health 571 , one has the right to health care. 572 The price is an important barrier to If not, the Ministry of Health considers that healthcare for undocumented migrants, who this will be enough time for the rarely can afford healthcare and often forgo undocumented migrant to leave the country. medical treatment because of the risk to be The right to most necessary healthcare can billed more than they can afford. also be interpreted as applying in cases in If the undocumented migrant is unable to which imminent risk of death, permanent pay for specialist healthcare, the care provider has to cover the price of the

https://lovdata.no/dokument/SF/forskrift/2011-12- 572 Ibid. 16-1255 573 Regulation 1255 566 Regulation 1255 §3 574 Regulation 1255 Section 5. The criterion in 567 Regulation 1255 §4-5 Regulation 1255 is very similar to the one in the 568 Regulation 1255 Section 3, The Patient´s Rights Mental Health Care Act Section 3-3 nr. 3 litra b, Act Section 2-1a §1 and 2-1b §1 however, it determines a lower threshold and covers 569 Circular letter I-2011-5 a larger group of people. 570 Regulation 1255 §5 a) 575 Op. cit. note 545 571 See Circular letter I-2011-5 chap 2.2. §2

99

NORWAY service, according to the Specialist Furthermore, women have the same rights healthcare Act Section 5-3.576 to termination of pregnancy as Norwegian and authorised resident women.581 As to primary healthcare, it is not specifically regulated whether a provider If an undocumented pregnant woman has to cover the price of the service if an cannot afford to pay for maternity care, she undocumented migrant patient does not might get it for free if she proves her lack of have sufficient means to pay for it. financial means. The regulations are also unclear concerning Children of undocumented migrants the coverage of the fees for necessary Before 2011, it was commonly considered medicine for migrants without means. The in Norway that children of undocumented Regional Health Care Authorities are migrants had the same rights as every other supposed to pay for medicines in citizen in Norway. emergency cases but the NIS does not cover these expenses for undocumented migrants. Since the 2011 Regulation 1255 582 , children The Norwegian Directorate of Health and of undocumented migrants have, as their Social Care acknowledged the need for new parents, only the right to emergency guidelines related to this, and passed the healthcare and to necessary healthcare that question to the Ministry of Health and cannot be postponed.583 Social Care. An exception was made in 2011 to the Undocumented pregnant women provision of necessary healthcare to Undocumented women have the right to children when it is in the interest of the child receive antenatal, delivery and postnatal that the healthcare shall not be provided. care, however they have to pay for it.577 This exception regards both primary and specialist healthcare and was made in Indeed, undocumented pregnant women regard to children who are about to leave the have the same right (but not the same country. access) to antenatal care as Norwegian women and authorised resident women.578 Thus, if the treatment cannot be fulfilled This includes preventive, primary and before the child leaves the country and an secondary healthcare. The guidelines set unfinished treatment will harm the child, forth by the Directorate of Health and Care the health care personnel who knows about Services concerning antenatal care apply the departure, shall not start the 584 for the undocumented pregnant women.579 treatment. As follows, access to necessary healthcare for undocumented As healthcare regarding giving birth is children is left to the personal appreciation considered as “emergency help”, of the consequences of treatment in regard undocumented women are entitled to such to a possible departure date made by the care.580 healthcare personnel. The entitlement of undocumented children to GP services is unclear. Although the

576 Op. cit. note 497 580 Regulation 1255 Section 3 577 Circular letter I-2011-5 pkt. 3 581Regulation 1255 Section 5c. 578 Circular letter I-2011-5 chap 2.3. 582Op. cit. note 545 579Circular letter I-2011-5 pkt. 2.3 583Regulation 1255, Sections 3 and 4 See the guidelines here: 584Circular letter I-2011-5 p. 6 https://helsedirektoratet.no/Lists/Publikasjoner/Atta chments/404/National-clinical-guideline-for- antenatal-care-short-version%20-IS-1339.pdf

100

NORWAY

Ministry of Health and Care Services issued citizens.591 Some fees may be reimbursed a decision regarding this, which supposedly by their country of origin.592 excludes them from the right to GP services.585 It can be argued that the The first three months of residence are Government meant to exclude children of authorised without condition for EU and undocumented migrants only from the GP- EEA citizens. To stay more than three arrangement as it is organised for the months, one has to have sufficient nationals, and not from the right to a similar economical means. EEA citizens seeking a service. 586 job can stay for up to six months without registration.593 The healthcare provider cannot claim payment in advance, or collect a payment Unaccompanied minors 587 claim after the healthcare is provided. When the unaccompanied minor is an asylum seeker, s/he is considered as an Termination of pregnancy authorised resident and is thus entitled to the Every woman in Norway has the right to same rights as a Norwegian citizen in terms pregnancy termination following the of healthcare. Termination of Pregnancy Act 588 , regardless of her immigration status. The authorities responsible of Abortion is free for Norway nationals and unaccompanied minors are the Immigration 594 women legally residing in Norway. Others Directory (UDI) and the Children welfare 595 have to pay for it, but the hospital cannot authorities , along with the healthcare require prepayment.589 authorities.

EU and EEA citizens Unaccompanied minor asylum seekers have the right to a provisional guardian who shall Norway is not a member of the European assist them in health and legal procedures Union (EU), but is a part of the EEA- and communicate with the authorities cited agreement. above.596 EEA and EU citizens with an authorised Most of minor asylum seekers obtain an residency are entitled to the same healthcare authorised residency: in 2015, 92% of as Norwegian citizens, usually upon unaccompanied minors obtained it, 89% as presentation of their EHIC.590 They have to refugees and 4% on humanitarian pay the patient charges as Norwegian grounds.597

585Op. cit. note 545, p. 55 and https://helsenorge.no/foreigners-in- 586Op. cit. note 545, p. 57 norway/health-care-benefits-during-a-temporary- 587 Søvig 2013, Karl Harald I: Undring og stay-in-norway erkjennelse: Festskrift til Jan Fridtjof Bernt, 2013, 591 Circular letter I-3/2017 Op. cit. note 590 p. 5 Rasmussen, Ørnulf; Schütz, Sigrid Eskeland; Søvig, 592 Op. cit. note 590 Karl Harald (Red.)Fagbokforlaget, Norway, Bergen 593 Circular letter RS 2011-037 chap 3 2013, p. 707 https://www.udiregelverk.no/no/rettskilder/udi- 588Termination of Pregnancy Act - 1975 rundskriv/rs-2011-037/ https://lovdata.no/dokument/NL/lov/1975-06-13-50 594 https://www.udi.no 589https://helsedirektoratet.no/folkehelse/seksuell- 595https://www.bufdir.no/Statistikk_og_analyse/Op helse/abort pvekst/Barn_pa_flukt/ 590Circular letter I-3/2017 chap.6-1 596http://www.noas.no/wp- https://www.regjeringen.no/no/dokumenter/dekning content/uploads/2013/12/Brosjyre-EMA- -av-utgifter-ved-helsehjelp-i-helseinstitusjoner- Engelsk_web.pdf under-den-offentlige-spesialisthelsetjenesten-blant- 597 Op. cit. note 595 annet-for-personer-som-ikke-er-bosatt-i- norge/id2539897/

101

NORWAY

If an unaccompanied minor does not seek Access to healthcare related to infectious asylum or did not obtain it, s/he is entitled diseases is supposedly wide, as it is in the to the same rights as children of interest of public health to treat everyone. In undocumented migrants. practice, however, access to treatment of infectious diseases is very limited for Protection of seriously ill undocumented migrants, as they are not foreign nationals entitled to GP consultation. In Norway, a residence permit can be granted to a foreigner if s/he has strong humanitarian needs or an extraordinary integration, based on an overall assessment of his/her situation.598 A seriously ill foreign national can thus obtain a permit to stay for humanitarian reasons if it is absolutely necessary for health reasons for him/her to stay in Norway, for instance if it is impossible for him/her to be treated in his/her country of origin. Children may be granted residence for health reasons under the same condition as adults, although, as a vulnerable part of the population, it is less difficult for them to prove the necessity to stay in Norway. In practice, health issues are very rarely the only reason for granting residence permit, but are rather one of the reasons of obtaining it in the overall assessment.

Prevention and treatment of infectious diseases Everyone, including undocumented migrants, has the right to healthcare related to infectious diseases, as it is considered as most necessary care, according to section 6- 1 of the 1995 Law on Control of Communicable Diseases.599 This comprises evaluation, diagnoses, treatment, care and other necessary healthcare 600 , which people receive for free.

598Immigration Act Chapter 5 Section 38 in the health care regulations towards people with 599Law on Control of Communicable Diseases -1994 unauthorized residency in Norway. Preparatory https://lovdata.no/dokument/NL/lov/1994-08-05-55 works for the Regulation 1255, p. 15 600 HOD 2010, The Ministry of Health and Care http://www.regjeringen.no/contentassets/de615e594 Services, Hearing of 25.10.2010 regarding changes e94466085abb7b39e77d303/hoeringsnotat.pdf

102

ROMANIA

body, which administrates the social health ROMANIA insurance system. The NHIF is the third party payer of the system and its main National Health System financial source. It manages the funds collected by the National Agency for Fiscal Constitutional basis Administration, subordinated to the The Romanian Constitution of 1991 601 Ministry of Finance. guarantees protection of health as a The Ministry of Health (MoH) is the central fundamental right in its Article 34, which authority responsible for regulation and bounds the State to take measures to ensure legislative initiatives, health policy public hygiene and health. formulation and public health.603 Social protection is acknowledged as a right Some of the Ministry of Health’s at work in article 41 of the Constitution and responsibilities have been gradually as a part of living standards to preserve in transferred to the local public authorities article 47. Article 49 also prohibits the through decentralisation, such as the employment of minors in activities that may ownership and administration of public harm their health, and article 35 recognises hospitals and the responsibility for the the right of every person to a healthy delivery of several public healthcare environment. services at the local level, including school medicine, community nurses or Roma The exercise of the right to healthcare may health mediators. be restricted by law. However, pursuant to article 53 of the Constitution, this restriction In 2015, the National Authority for must be necessary, cannot be based on Management in Health Care was created. In discrimination and cannot infringe on the collaboration with the MoH, this body is in charge of establishing quality criteria for existence of this right. health care providers. Organisation and funding of Romania Cross-sector approaches in health policy are healthcare system ensured at the national level through collaboration between the Ministry of Organisation Health and the Ministry of Labour, Social The main law regulating healthcare in Solidarity and Family, the Ministry of Romania is the 95/2006 Law on healthcare Interior, the Ministry of Finance, the reform 602 of 14 April 2006. It governs the Ministry of Social Solidarity and Family functioning and the principles of the and the Ministry of Education.604 system, determines the categories of insured Romania is administratively divided into 41 population, the benefits they are entitled to counties and the Municipality of Bucharest. and the categories of insured population In each county and in Bucharest, there is a exempted from the payment of Ministry of H ealth’s deconcentrated body: a contributions. District Public Health Authority (DPHA) The Law on Healthcare Reform also responsible for the management of the established the National Health Insurance national preventive health programs at Fund (NHIF) as an autonomous central county level; and a National Health

601http://www.constitutiaromaniei.ro/ Health Systems in Transition, 2016 602Law on healthcare reform – 2006 http://www.euro.who.int/__data/assets/pdf_file/001 http://legislatie.just.ro/Public/DetaliiDocument/711 7/317240/Hit-Romania.pdf?ua=1 39 604 Ibid. p. 43 603Vlădescu C, Scîntee G, Olsavszky V, Allin S and Mladovsky P. Romania: Health system review.

103

ROMANIA

Insurance House subordinated body: a health in 2014, the lowest public budget District Health Insurance House (DHIH), devoted to health among the EU Member which signs contracts with the county States.607 healthcare providers every year. Accessing Romania healthcare system Funding The Romanian healthcare system is based Romania health insurance system is funded on a mandatory health insurance scheme, by a mix of compulsory and voluntary which covers all Romanian citizens and elements. Since 1998, the dominant foreigners legally residing in Romania.608 contribution mechanism is social The insured population has access to a basic insurance.605 package of health services, pharmaceuticals Most of the health funds derive from the and medical devices through a system of population, predominantly through third National Health Insurance Card. Covered party payment mechanisms i.e. social health medical services include:609 insurance contributions and taxation; and Ø through out-of-pocket payments i.e. co- preventive healthcare services Ø curative health services payments and direct payments. Ø ambulatory healthcare The contribution for the mandatory health Ø hospital care insurance amounts to 5.5% of employee’s Ø dental services monthly wage plus 5.2% added by their Ø laboratory analyses employers.606 It is collected into a national Ø medical emergency services health insurance fund, included in the state Ø complementary medical budget. rehabilitation services

Each year, the Ministry of Health, the Ø pre-, intra- and post-birth medical National Health Insurance House and the assistance

College of Physicians agree on a Ø home care nursing

Governmental Decision (yearly framework Ø prescribed medication contract): it settles which health services Ø healthcare materials shall be contracted and reimbursed within Ø orthopaedic devices and prosthetics the health insurance system and the level of Ø medical transport payment for both public and private healthcare providers. Insured persons are entitled to medical services from the first day of sickness, or the Healthcare funding is completed by date of an accident, until they fully recover. national public health programs financed by the state budget and addressing the entire The coverage of medicines depends on their population, including uninsured people. classification: Since the fall of the communist regime in Ø class A medicines (important and 1990, the Romanian government allocates cost-effective) are reimbursed up to each year an increasing amount of financial 90% resources to the healthcare sector. Still, this Ø class B medicines (less essential or sector is severely underfunded, as Romania less cost-effective compared to class was allocating only 5.6% of its GDP to

605Op. cit. note 603, p. 61 http://ec.europa.eu/health/reports/docs/health_glanc 606http://www.euprimarycare.org/column/primary- e_2014_infograph_en.pdf care-romania 608Op. cit. note 603, pages 47-48 607 Health at a Glance: Europe 2014, European 609Detailed list available at Commission, 2014 http://www.cnas.ro/casmb/page/care-sunt- serviciile-medicale-de-care-beneficiez.html

104

ROMANIA

A medicines) are reimbursed up to Ø medical services for communicable 50% diseases that may represent a public Ø class C medicines (for severe health threat chronic diseases, requiring special Ø pregnancy related care (pre- and medical prescription, or distributed postnatal care, delivery) through hospital pharmacies) are Ø life threatening emergencies. fully covered 610 Uninsured people are required to pay for Pursuant to article 213 of the Law on medical ambulatory care they receive, healthcare reform 611 , certain categories of except in cases comprised in the minimum insured population are exempted from the package of services. payment of the contribution, as: Barriers to access healthcare

Ø children up to 18 years old Access to healthcare in Romania is

Ø young people up to 26 years old if characterised by strong disparities between they are enrolled in education the rural and urban regions, notably because

Ø pregnant women with no income or most physicians are concentrated in the big on a sub-minimum income cities, leaving the rural areas with

Ø disabled persons with no income insufficient human resources for healthcare. Ø People whose infection is covered by National Health Programmes Another important barrier to access Ø war veterans and their widows healthcare is the financial one, associated Ø victims of political persecution with formal and informal out-of-pocket- between 1948 and 1989 payments. In 2011, over 60% of patients made informal payments to their doctors, Children up to 18 and young people, up to reflecting a lack of concern for patient’s 26 years, enrolled in a form of education, rights in certain medical facilities. 614 patients with diseases included in national health programs, with no income, persons Recent reforms on a very low income and pregnant women Most recent law reforms in Romania 612 are also exempted from co-payments. focused on harmonising the national legislation with the EU law, as the Directive Despite social health insurance being 2011/24/EU on patient’s rights in cross - compulsory for every citizen and foreign border healthcare in 2014, transposed by an resident in Romania, in 2014, around 14% ordinance of 29 January 2014.615 of the population was not insured.613 The non-insured population has access to a Reforms were recently taken on the minimum package of services, which improvement of the minimum benefit includes far less services: package for uninsured people, starting January 2015. It includes several additional Ø some preventive services health services, such as prevention and

610(p.37) 614World Bank. 2011. Romania - Functional review: http://www.euro.who.int/__data/assets/pdf_file/001 health sector . Washington, DC: World Bank., p. 8 7/317240/Hit-Romania.pdf?ua=1 http://documents.worldbank.org/curated/en/2011/05 611 Op. cit. note 602 /17056888/romania-functional-review-health-sector 612Law on healthcare reform Op. cit. note 602 615OUG 2/29.01.2014 , integrated in the consolidated Article 225 reform law 95/2006 613 http://www.anm.ro/anmdm/_/LEGI http://www.hspm.org/countries/romania23092016/li ORDONANTE/OUG 2 din 29.01.2014.pdf vinghit.aspx?Section=3.7%20Payment%20mechani sms&Type=Chapter

105

ROMANIA reproductive health/family planning provision of the right to healthcare and services. Moreover, the reforms also aimed social assistance, among others. at increasing access to subsidised The main law regulating the status and prescribed drugs, through the introduction rights of refugees and asylum seekers in of the HTA system (health technology Romania is the 2006 law no.122/2006 assessment), the introduction of new regarding asylum in Romania.618 innovative molecules on the list of subsidised drugs, the implementation of As stated in article 17, para.1-M of the policies for the reduction of medicine 112/2006 law, individuals who seek a form prices, regulations in the pharmaceutical of international protection are entitled, free sector (related to the claw-back tax), the of charge, to: patient electronic card and the electronic prescription of subsidised drugs. Ø primary medical care Ø adequate treatment The ongoing National Health Strategy Ø emergency hospitalisation 2014-2020, adopted through the Ø healthcare and treatment in cases of Governmental Decision acute of chronic diseases which 1028/18.11.2014 616 defined specific imminently endanger their life. objectives in the areas of public health, Ø be included in national public health health services and regarding vulnerable programmes aimed at the categories of people. It is aimed at prevention, surveillance and control improving access to healthcare of quality of communicable diseases in for poor or vulnerable groups, with a focus epidemiological risk situations on rural populations and Roma people. Furthermore, the 122/2006 law affirms in Access to healthcare for its article 17 para 1-N the right of asylum migrants seekers with special needs to receive adequate care. Asylum seekers, refugees and those These healthcare services are provided by eligible for subsidiary protection the medical services of the accommodation Foreigners who received a form of centre or by other health units. international protection in Romania have access to medical care in the same Article 19-H of the 122/2006 law provides conditions as Romanian citizens, pursuant that, individuals who seeks a form of to article 7 of the 2004 Government protection have - among others - the Ordinance no. 44/2004 regarding the social obligation to present themselves to the integration of foreigners who were granted medical examinations that are established a form of protection in Romania.617 for them. Article 1 of the 44/2004 Ordinance states However, article 8 of the Methodological that its aim is to facilitate the integration of Norms of Application of Law no. foreigners with a residence through 122/2006619 specifies that asylum seekers

616http://ms.gov.ro/upload/HG%201.0282014%20- http://igi.mai.gov.ro/sites/all/themes/multipurpose_ %20Strategia%20Nationala%20de%20Sanatate%2 zymphonies_theme/images/pdf/LEGEA122ANUL2 02014-2020.pdf 006.pdf 617Ordinance no. 44/2004 619Methodological Norms of Application of Law no. http://legeaz.net/og-44-2004-integrarea-sociala-a- 122/2006 strainilor/ http://www.mmuncii.ro/pub/imagemanager/images/ 618Law no. 122/2006 regarding asylum in Romania , file/Legislatie/HOTARARI-DE- last amended through Law no. 331/2015 on the GUVERN/HG1251-2006.pdf approval of the Government Ordinance no. 25/2016

106

ROMANIA have to be present only for the medical 194/2002 regarding the regime of foreign examinations that are established for nationals.625 reasons of public health. Before they leave the centre, refugees are Romania is bound by the Dublin III requested to undergo a fitness for travel Regulation 620 , which determines the procedure that determines if they may travel responsibility of European states in the by air. It is a medical examination that takes consideration of asylum applications. place 24-48 hours before take-off. Pregnant However, Romania is mostly seen as a women, of more than 32 weeks, are not transit country by migrants who wish to allowed to fly. 621 seek asylum in other EU countries. Pursuant to article 17-H of the Government The International Organisation for Ordinance no. 44/2004 626 , asylum seekers Migration (IOM), the UNHCR and the have the right to work and are entitled to Romanian Government have a tripartite assistance in job search. Having the right to agreement regarding refugees in Romania. work makes asylum seekers eligible for The outcome of this agreement is the Centre health insurance, if they can afford to pay for emergency transit in Timisoara. This the contribution. centre is an “evacuation facility”, meant to provide temporary shelter for refugees who Pregnant asylum seekers and refugees need to be immediately evacuated from Pregnant asylum seekers are entitled to their first country of refuge and will be ante- and post-natal care and to family relocated to another one.622 It also operates planning services. as a non-secure reception centre for asylum seekers being processed under Romanian Family planning services are included in the national law.623 basic package of services for insured women and are thus reimbursed by the Refugees in the Emergency Transit Centre county Health Insurance House. can receive a complete medical examination including a laboratory analysis Children of asylum seekers and refugees and pulmonary radiography for those older than 15 years of age to establish their health Children of asylum seekers benefit from the same rights guaranteed to Romanian status, and treatment if needed.624 Children by the law 272/2004 regarding the The refugees benefiting from a transit visa protection and promotion of children's can stay no longer than six months on rights 627 as stated in its Article 3. Romanian territory. However, this period Pursuant to article 46 of the 272/2004 Law, can be prolonged should a certain treatment be necessary e.g. for tuberculosis. If a child children of asylum seekers and refugees is diagnosed with tuberculosis, his/her have the right to benefit from the highest whole family can usually remain with attainable standard of health and to benefit him/her for the prolonged period, pursuant from the medical and recovery services to Article 69 2of the Government Ordinance necessary to ensure the realisation of this

620 Dublin III Regulation – 2013 625Government Ordinance 194/2002 regarding the 621 European network for technical cooperation on regime of foreign nationals the application of the Dublin II Régulation,2012, http://www.mae.ro/sites/default/files/file/userfiles/fi National Report Romania, The application of the le/pdf/servicii- Dublin II Regulation in Romania , p. 22 consulare/2012.07.30_oug_194_2002.pdf 622http://www.unhcr-centraleurope.org/en/what-we- 626Op. cit. note 617 do/resettlement/etc-timisoara.html 627Law no. 272/2004 regarding the protection and 623http://www.globaldetentionproject.org/countries/ promotion of children's rights , republished in 2014 europe/romania http://www.mmuncii.ro/j33/images/Documente/Leg 624http://www.unhcr.org/50aa08d39.pdf islatie/L272-2004-R.pdf

107

ROMANIA right. pregnant women, regardless their health 632 Moreover, the access of children to medical insurance statute. and recovery services, as well as to the In addition, according to Article 46 of the adequate medication pertaining to their Law no. 272/2004 633 regarding the state of health is guaranteed by the state and protection and promotion of children's the costs are covered by the National Health rights, all necessary measures are to be Insurance Fund and by the state budget.628 taken in order to ensure that pregnant Children of asylum seekers are exempted women receive medical services in the pre- from paying the contribution to the , intra- and postnatal period, independently mandatory health insurance and can benefit of their insurance status. from it until they are 18.629 Family planning services are included in both the basic and the minimum packages Undocumented migrants of services delivered at the primary Undocumented migrants are only entitled to healthcare level and are reimbursed by the free emergency care, in case of epidemic county health insurance houses. diseases, life-threatening emergency, Children of undocumented migrants pregnancy related care and family planning support. Article 213 of the Law on healthcare reform 634 states that all children under 18 They can access all other health services but years of age and up to 26 years of age if only if they can cover the full costs. enrolled in any form of education benefit from health insurance, without having to Pursuant to Article 102 2 of the Government pay the contribution. Emergency Ordinance 194/2002 regarding the regime of foreign nationals 630 , if an In practice, children of undocumented undocumented migrant is unable to leave migrants experience difficulties registering the Romanian territory for objective reasons on a family physician's list because their independent of her/his will, s/he can be parents do not benefit from health granted a status of toleration for a renewable insurance.635 period of six months. Foreigners in accommodation centres Throughout the period of the tolerated stay, foreigners have access to work in the same Article 213, par. 2 e) of the Law on 636 conditions as Romanian citizens, which Healthcare Reform provides that opens the possibility to be insured upon foreigners who stay in accommodation payment of the contributions.631 centres in order to be returned or expulsed and also those who are victims of human Undocumented pregnant women trafficking and are currently undergoing The Law on Healthcare Reform stipulates identification procedures benefit from universal healthcare services for all

628 Ibid. Article 46 634 Law on healthcare reform 629 Law on healthcare reform , Article 213 635OvidiuVoicu, AndraBucur, Victoria Cojocariu, 630 Government Emergency Ordinance no. 194/2002 Luciana Lăzărescu, Marana Matei, Daniela regarding the regime of foreign nationals Op. cit. Tarnovschi, "The Barometer for the Integration of note 618 Immigrants -Final Research Report", Electronic 631Inspectorate-General of Immigration information Edition , 2015, Website http://igi.mai.gov.ro/en/content/long-stay- http://www.fundatia.ro/sites/default/files/BII%2020 visa-employment-secondment 15%20final%202015.pdf, p. 78 632Law on healthcare reform Articles 224 & 225 636 Law on healthcare reform 633Op. cit. note 627

108

ROMANIA health insurance without having to pay the Article 35-2 of the 44/2004 ordinance contribution. further provides that unaccompanied minors who have received a form of EU mobile citizens protection in Romania are included in the The European Health Insurance Card, children protection system. defined in the Law on healthcare reform 637 , When unaccompanied minors are placed in allows EU citizens who hold it to access the care of a person, a maternal nurse or a healthcare in Romania. residential service in order to receive care or In accordance with Directive 2004/38/EC protection, their treatment is periodically of 29 April 2004 638 , after three months of verified, pursuant to articles 3 and 46 of the residence in Romania, EU citizens who do Law regarding the protection and 642 not have sufficient financial means lose promotion of children's rights. their entitlement to access to the same healthcare services as Romanian nationals. Protection of seriously ill Destitute EU citizens are considered as foreign nationals undocumented migrants and have the same Medical care is generally conditioned by access to healthcare as them. payment of the contribution to health However, pursuant to Article 213 of the insurance and the Romanian law does not Law on healthcare reform 639 , children of specifically exempt seriously ill individuals EU citizens have access to health insurance who do not have an income from paying the without having to pay the contribution. health insurance contribution. Thus, unless it is an emergency (or a situation as Unaccompanied minors mentioned in a previous chapter), foreign As minors, unaccompanied children are nationals who are not exempted from the entitled to free health insurance, pursuant to mandatory contribution will only access article 213 of the Law on healthcare healthcare if they can afford it. reform.640 Moreover, after the expiration of the Unaccompanied minors are one of the foreigner’s permit to stay, it will be possible special cases regulated by the Government to extend it only if s/he has a health Ordinance no. 44/2004 regarding the social insurance.643 Thus, destitute ill individuals integration of foreigners who have received who are not able to pay a health insurance either international protection or a stay cannot stay in Romania to access permit in Romania or who are EU healthcare.644 citizens.641 Indeed, as stated in article 69 of the If an unaccompanied child has been granted 194/2002 Ordinance.645 foreigners who international protection, s/he will be entitled undergo a form of long-term medical to healthcare in the same conditions as treatment can have their permit to stay Romanian citizens, as stated in article 7 of extended, providing they present a letter of the 44/2004 ordinance. acceptance from a public or private medical facility, which should specify the diagnosis

637 Law on healthcare reform , Articles 325-326 and 643The Barometer for the Integration of Immigrants 327-336 op. cit. note 635, p. 67 638 Directive 2004/38/EC 644The Barometer for the Integration of Immigrants 639 Law on healthcare reform Op. cit. note 635, p. 77 640Op. cit. note 617 645 European Centre for Disease Prevention and 641Op. cit. note 617, Article 33 Control. Country mission Romania: HIV, sexually 642Op. cit. note 627 transmitted infections, and hepatitis B and C. Stockholm: ECDC; 2012, p. 1

109

ROMANIA and duration of treatment, a proof of social measures against it as stated in Article 77, health insurance and a proof of sufficient para 3-C of the 194/2002 Ordinance. means of existence. A residence permit may also be issued to an accompanying person if When the removal has already been the foreigner is not able to care for decided, it can be suspended if there are him/herself, and if this is expressly justified chances that the foreigner’s life mentioned in the letter of acceptance. 646 would be put in danger or that they will be submitted to torture or inhuman or The Government Ordinance no. 194/2002 degrading treatment in the country s/he regarding the regime of foreign nationals 647 would have to return to, or if the health provides that foreign nationals benefit from condition of the foreigner makes it social protection in the same conditions as impossible, pursuant to article 96 para.1 of Romanian citizens. In practice however, the the 194/2002 Ordinance. only foreigners with stay permits who have access to the social benefits system are Prevention and treatment of foreigners who come for family reunions infectious diseases and the persons who have obtained a form of protection in Romania, because they Article 38 of the Law on healthcare 649 usually have sufficient means of existence reform provides that any person on and a long stay permit.648 Romanian territory must submit themselves to preventative and combative measures Furthermore, Article 92 of the 194/2002 regarding infectious diseases, thoroughly Ordinance states that the removal of the respect hygiene and public health norms, foreigner is prohibited if s/he: provide any requested information to the Ø is a minor whose parents have a stay authorities, and apply the established permit in Romania measures regarding the conditions for Ø is the parent of the minor Romanian prevention of diseases and for the health citizen and has to take care of the promotion of the individual and public latter or to pay alimony health. Ø is married to a Romanian citizen and The diagnosis of sexually transmitted the marriage is not for convenience infections (STI) is provided free of charge and still effective for insured and uninsured individuals.650 Ø is married to another foreigner who has a stay permit for the long run HIV and Tuberculosis are part of the and the marriage is not for declared public health priorities in convenience Romania. On one hand, ambulatory and Ø is older than 80 years of age inpatient medical services related to these However, even in these cases, it is possible diseases are reimbursed from the health to remove the foreigner from the Romanian insurance funds, through contracts signed territory if s/he constitutes a danger to between county Health Insurance House public order or national security of if s/he and medical providers. On the other hand, suffers from a disease that threatens public the Ministry of Health pays for the health and refuses to submit him/herself to treatment through national health programmes.651

646http://igi.mai.gov.ro/en/content/other-purposes 650European Centre for Disease Prevention and 647 Op. cit. note 645 Control. Country mission Romania: HIV, sexually 648The Barometer for the Integration of Immigrants transmitted infections, and hepatitis B and C. Op. cit. note 635, p. 73 Stockholm: ECDC; 2012, p. 1 649Law on healthcare reform – 2006 651MoH Ordinance no 386/2015 for approval of the implementing norms for the national public health

110

ROMANIA

Since 2002, the Law no.584/2002 652 Control 2015 -2020, in continuity with the regulates the prevention of HIV/AIDS and previous national strategy to reduce the the measures to ensure the social protection mortality and transmission of TB. of people living with HIV or AIDS. The National Institute for Public Health is The management and control related to HIV responsible for the surveillance of STI, is achieved through a national HIV hepatitis B and hepatitis C through the network, composed by 9 regional centres National Centre for Communicable Disease and around 50 county centres. The Surveillance and Control ( Centrul National prevention services covered by the de Supravegheresi Control al programme consist in screening tests, BolilorTransmisibile – CNSCBT ). prophylactic-post-exposure ARV therapy, Romania lacks specific detection, information, education, communication prevention and treatment policies on activities (IEC) and syringe exchanges. HIV infectious diseases, mostly because of testing services are included in the antenatal insufficient budget resources. health services package at national level.653 Prevention interventions in the national The Roma minority health programmes, accessible to uninsured According to official figures, the Roma people, are limited to medical services population represents 3% of the national provided within the healthcare facilities. population.656 Being funded from the state budget, The health of the Roma population is diagnosis and treatment are in theory particularly poor. The life expectancy is on available free of charge for all citizens, average 6 years lower than the non-Roma regardless of their insured status. population in Romania.657 In practice, uninsured HIV positive patients Poor health outcomes are also caused by the are asked either to pay the contribution to ineffective use of available health services the health insurance fund or to get a by the Roma population. Indeed, even certificate of disability, in order to receive a though a number of health services are free, complete diagnostic, treatment and care. many Romanian Roma do not seek Access to prevention for vulnerable groups, healthcare because of their lack of financial as injection drug users, is very low. resources and uncertainty about what to With the highest tuberculosis incidence pay.658 among the EU Member States, Romania is Even though some healthcare services can included in the 18 high-priority countries to 654 be accessed, free of charge, Roma fight TB in the WHO European Region. individuals often have to forego prescribed In February 2015, the Government issued 655 treatment because of the price of the the Government Decision 121/2015 , medication. endorsing the National Strategy for TB programs in 2015 and 2016 http://www.euro.who.int/__data/assets/pdf_file/000 http://legeaz.net/monitorul-oficial-221- 7/269269/Review-of-the-national-tuberculosis- 2015/ordinul-ministerului-sanatatii-386-2015 programme-in-Romania.pdf 652Law on measures to prevent the spread of AIDS in 655Government decision 121/2015 Romania and protection of people living with HIV or http://legislatie.just.ro/Public/DetaliiDocument/166 AIDS – 2002 577 http://legislatie.just.ro/Public/DetaliiDocument/397 656from the 2011 census 44 657“Diagnostics and policy advice for supporting 653Op. cit. note 645, p. 2 Roma inclusion in Romania”, Wor ld Bank, 2014, 654WHO Review of the national tuberculosis p.152. programme in Romania http://www.worldbank.org/en/region/eca/brief/roma 658Ibid. p. 154

111

ROMANIA

Roma population faces discrimination in Roma in Romania face a variety of barriers access to healthcare due to the lack of to healthcare such as discrimination, lack of identity papers, of health insurance and of health education and information on health registration with a family doctor, even services, lack of financial means, and though the Law on Healthcare Reform 659 difficult geographic access for those living foresees non-discriminatory access to in rural areas. healthcare for all citizens, based on their insurance status and that even the uninsured Since 2002, the Promotion of Mother and have the right to register with a family Child Health at Community Level doctor and to receive the minimum package programme has introduced health mediators of health services. in order to facilitate communication between the medical staff and the Roma The health of Roma women and maternal people, in order to improve effective access mortality are of particular concern, as is also to healthcare for mothers and children. the prevalence of early marriage and However the number of health mediators teenage pregnancy. According to the World available has since steadily decreased.664 Bank, the frequency of reproductive health check-ups remains low among Roma women.660 Prenatal and postnatal care is also low among Roma women: more than half the adolescent mothers lack counselling during pregnancy and register the highest prevalence of non-users (10%) and under- users (51,4%) of prenatal care services in 2011.661 The risk of infant mortality among Roma infants is four times greater than among general population in urban areas. Almost half (45.7%) of the Roma children do not receive all the vaccines included into the National Immunisation Program although they are mandatory and free of charge.662 The rate of diagnosis of TB among Roma respondents is more than double that of the general population, while in the 55-to-64- age group, diagnosis is four time higher among Roma respondents, according to the 2013 European Roma Rights Centre survey.663

659 Law on healthcare reform – 2006, Article 230 663Hidden Health Crisis - A Report by The European 660Op. cit. note 657, p. 164 Roma Rights Centre: Health Inequalities and 661Nanu M and all “Evaluarea intervenţiilor in Disaggregated Data , October 2013, p.6 programele naţionale privindn utriţia copiilor” http://www.errc.org/cms/upload/file/hidden-health- IOMC, MS, UNICEF, 2011 crisis-31-october-2013.pdf 662UNICEF, Roma Early Childhood Inclusion 664http://www.euro.who.int/__data/assets/pdf_file/0 Report , 2012 017/317240/Hit-Romania.pdf?ua=1 (p.123) http://www.unicef.org/romania/RECI-Overview.pdf

112

SLOVENIA

Several structures are in charge of SLOVENIA healthcare in Slovenia. The highest authority is the Ministry of Health, which National Health System prepares legislation related to healthcare and health protection, ensures the Constitutional basis implementation of national and The Republic of Slovenia Constitution of international law regarding health and 28 th December 1991 665 provides for the prepares strategic plans for public health right to health in its article 51 which states and health financing matters. that “everyone has the right to health care The Health Insurance Institute of under conditions provided by law”, the Slovenia 668 (ZZZS), based in Ljubljana, is rights to healthcare from public funds shall the public institute in charge for be provided by law and no one may be implementation of compulsory health compelled to undergo medical treatment insurance as a public service. The Institute except in cases provided by law”. is organised in such a way that the service is Furthermore, Article 13 of the Constitution available to insured persons the nearest as states that foreigners benefit from all the possible to their home of residence. Institute rights guaranteed by the Slovene establishes organisational units for specific Constitution and laws, except for the rights sectors and for specific areas (Article 69 of reserved to the citizens of Slovenia. the Law on Health Care and Health Insurance 669 ).

Organisation and funding of the 670 Slovenian healthcare system The National Institute of Public Health (NIJZ) is the main national institution Organisation whose main purpose is to study, protect and increase the level of health of the population The legal basis of the Slovenian health of the Republic of Slovenia through system was formed by the Law on Health awareness raising and prevention measures. Care and Health Insurance (ZZVZZ) of 666 In addition to the central role in public 1992. health activities in Slovenia, the NIJZ is The Slovene health system comprises two actively involved in international projects. types of health insurance: compulsory and Lastly, four health insurance companies are voluntary or supplementary health in charge of providing voluntary health insurance. insurance in Slovenia. Their function is determined by the Insurance Act of 22 th It is mainly public, with a few private 671 practices incorporated into the public December 2015. The insurance system and some strictly private service companies can provide only an additional providers.667 voluntary insurance to compulsory insured persons or other supplementary insurances,

665http://unpan1.un.org/intradoc/groups/public/docu 89171B7F7B7DC1256E890048B206?open&nas=A ments/UNTC/UNPAN014895.pdf ccessing%20healthcare%20in%20SLO. 666 Law on Health Care and Health Insurance – 1992 668 http://www.zzzs.si/indexeng.html (Zakon o zdravstvenem varstvu in zdravstvenem 669 Op. cit. note 666 zavarovanju) 670 http://www.nijz.si/en http://www.pisrs.si/Pis.web/pregledPredpisa?sop=1 671Insurance Act - 2015 992-01-0459. http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA 667For more information see KO6183 in http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/021E

113

SLOVENIA which cannot substitute the compulsory his/her personal physician and optionally a insurance. personal dentist and gynaecologist.674 In 1999, the Health Insurance Card (Kartica The personal physician is authorised and zdravstvenega zavarovanja) was obliged to, among others, refer his/her introduced. This card is a public document patients who need it to a specialist, to a that the compulsory insured persons have to hospital, to a medical committee and to the submit to demonstrate their health Disability commission 675 ; prescribe insurance rights. It was an important medications and medical devices and technological step permitting faster establish temporary absence from work.676 treatment and transfer of data between insured persons, insurers and health care Access to general practitioners is good in providers as well as the centralisation of Slovenia, even in remote rural areas. health providers in one network. However, a limit to the Slovene healthcare system is the existence of long waiting lists Funding to access primary care, especially dental 677 Slovenia’s health system, based on the care because of a lack of dentists. Bismarckian model, is mainly funded by Urgent medical assistance can be accessed compulsory health insurance contributions, without the referral of a physician and tied to employment. They amount to 6.36% without the need to show the Health of employees’ gross salaries and 6.56% Insurance Card beforehand.678 In practice, 672 from their employers. the medical staff most often ask to see the The remaining funding comes from Health insurance Card. voluntary health insurance premiums, The Health Services Act of 13 th February household out-of-pocket and state and 1992679 , last amended on 30 th December municipalities tax revenues. 2016 is the main legal instrument determining the operation of healthcare Accessing Slovenia healthcare system services. All Slovenes, persons with an authorisation to reside in Slovenia and their close family Following its provisions, health care members are entitled to health insurance services at the primary level are the and care.673 responsibility of the municipalities and are performed by public healthcare centres, Access to non-urgent healthcare is possible whereas public health services at the only through personal physicians. Every secondary and tertiary level are both person in Slovenia has to designate a provided by the state at a national level.680 general physician of his/her choice as

672 Table of contributions for different types of 675http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/71 inured persons 1DAD33F7FB1CB8C1257BB000456695. http://www.zzzs.si/zzzs/internet/zzzs.nsf/0dbed6c0a 676 Law on Health Care and Health Insurance op. cit. 93d31d8c1256a67006844b3/7f079796008ee60ec12 note 666, article 81 56d3a00460146?OpenDocument. 677 European Observatory on health systems and 673 Article 15 of the Law on Health Care and Health policies – Health systems and policy monitor Insurance (op. cit. note 666) lists categories of http://www.hspm.org/countries/slovenia25062012/c people entitled to health insurance and care ountrypage.aspx 674 Law on Health Care and Health Insurance : op. 678Rules on compulsory health insurance op. cit. note cit. note 666, Articles 80 to 85, 674 - Article 179 and Rules on compulsory health insurance 679http://www.pisrs.si/Pis.web/pregledPredpisa?id= http://www.pisrs.si/Pis.web/pregledPredpisa?sop=1 ZAKO214 994-01-2855 of 17th November 2014, Articles 161 680 Public network of Primary, Secondary and to 180. Tertiary healthcare services, Ministry of Health,

114

SLOVENIA

It is to be noted that compliance with the For instance, compulsory health insurance law and general acts of the Health Insurance covers in full:685 Institute is necessary to be reimbursed for medical services and other benefits. · treatment and rehabilitation of children, pupils and students up to Compulsory health insurance 26 years who are regularly attending The Slovene social insurance system is school based on a single insurer providing the · medical consultations related to compulsory health insurance. This pregnancy insurance is universal and based on a clear · Health protection of women in employment status or on a legally defined relation to the advice of family dependency status.681 planning, contraception, pregnancy and childbirth The institution regulating the compulsory · Prevention, detection and treatment insurance is the Health Insurance Institute of HIV and infectious diseases, for of Slovenia, under the Law on Health Care which is required by law to and Health Insurance 682 and Rules on implement measures to prevent their compulsory health insurance.683 Both of spread, these legal texts define and regulate the · treatment after injury at work nature and extent of the rights of the insured · treatment and rehabilitation of a persons, but also which services are covered number of serious diseases as a whole or in a certain percentage of the · emergency medical assistance services price. including emergency rescue The compulsory health insurance is services and transportation mandatory for everyone who can access it. As for goods and services covered in part: Compulsory insured persons are entitled to · hospital treatment is covered in the receive basic health services; dental care; amount of at least 90% of the value services of specialised doctors, hospitals or of the service institutions; prescription medications; medical and technical devices; spa · primary care services, treatments of dental and oral diseases, healthcare treatments; rehabilitation, ambulance and related to fertility and certain other vehicles transportation; and, when medical devices are covered in the travelling and living abroad, to receive amount of at least 80% of the value medical treatment abroad. of services The price of the healthcare services and · health services in continuation to goods at the points of use is regulated by hospital treatment and certain article 23 of the Law on Health Care and prescribed medications are covered Health Insurance, which determines the in the amount of at least 70% of their percentage of the price to be covered value depending on the service or good and on the person who receives it.684 http://www.mz.gov.si/si/delovna_podrocja_in_prior 684http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/87 itete/zdravstveno_varstvo/mreza_na_primarni_seku C028D74130DE0AC1256E89004A4C0C ndarni_in_terciarni_ravni/ 685 Rules on compulsory Health insurance op. cit. 681http://www.euro.who.int/__data/assets/pdf_file/0 note 674, article 22 004/96367/E92607.pdf and 682 Op. cit. note 674 http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/87C 683 Op. cit. note 674 028D74130DE0AC1256E89004A4C0C

115

SLOVENIA

· Not necessary emergency services with the Law on Health Care and Health and spa treatment are covered up to Insurance.688 60% · Medical devices for improving Voluntary health insurance covers the vision for adults are covered at up to insured costs of healthcare and related 50% of the value services, supply of medicines and medical devices, as well as the payment of the agreed cash benefits in the event of illness, To the extent provided by the Law on injury or a specific medical condition. Health Care and Health Insurance, the compulsory insurance also covers salary The amount of the value covered generally compensation during temporary absence corresponds to the difference up to the full value of services covered by the from work and reimbursement of travel 689 expenses related to the promotion of health compulsory insurance. services. Urgent medical assistance Destitute Slovene nationals are entitled to Every person, even uninsured, has the right compulsory health insurance.686 If they to urgent medical assistance. cannot pay for voluntary insurance they can apply for social assistance and meet the Urgent medical assistance includes medical conditions to get it, the state pays for the services necessary to maintain life functions costs not covered by the compulsory or to prevent serious deterioration of health insurance. Municipalities too are obliged to condition of suddenly sick, injured and pay contributions for persons listed in chronically ill people. Services are provided Article 15 of the Law on Health Care and until the stabilisation of vital functions or Health Insurance, point 21.687 the beginning of treatment in an appropriate place. Urgent transportation services are The 1992 Law on Health Care and Health included in the urgent services.690 Insurance introduced cost-sharing in the form of co-payments: patients in Slovenia The urgency of treatment is decided by are charged a flat rate for most health assessment of the personal physician or related services. Vulnerable groups, as competent health committee in accordance children, unemployed individuals, those with the general acts of the Health Insurance with a very low income or chronically ill Institute. Consequently, access to people are exempted from these fees. healthcare can be denied if the case is considered as non-urgent. Medical Voluntary health insurance assistance may also be billed after it In order to be covered for the full value of occurred if the case is later considered as healthcare, it is possible to subscribe to a non-urgent. voluntary health insurance in addition to the For non-insured women, as abortion is compulsory one. supposed to be considered as an urgency, it Voluntary health insurance is managed by is covered by the Ministry of Health. Yet, private insurance companies, in accordance the practice shows that there is still no common direction on how to proceed in

686Article 15 Law on Health Care and Health http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/87C Insurance op. cit. note 666 028D74130DE0AC1256E89004A4C0C. 687Op. cit. note 666 690Article 25 of the Law on Health Care and Health 688Ibid. Insurance Op. cit. note 666 689For health services covered by the supplementary insurance, see

116

SLOVENIA those situations and the bill may be issued medical screening may be required at the to the patient as the abortion is sometimes entrance of the Slovene territory. considered as a non-urgent care. Article 86 also determines that vulnerable Slovenia provides funds from the state persons with special needs, and budget to cover urgent care for individuals exceptionally other asylum seekers, are of unknown residence and foreign nationals entitled to additional health services, from states with whom international including psychotherapeutic assistance agreements have not been concluded.691 approved and established by the Commission designated by the Minister of Access to healthcare for Health. migrants In practice, asylum seekers accommodated in Asylum Home have access to regular Authorised non-EU residents basic medical examinations by a medical Non-EU citizens with permission to reside professional who refers the asylum seeker in Slovenia have mandatory health to urgent care or a medical consultation in a insurance as employed, self-employed, Health centre if needed. students or unemployed persons. Their family members are insured if they are Access to healthcare is much more difficult registered as permanent residents in for asylum seekers who are not Slovenia, unless differently provided by accommodated in Asylum Home, mostly international agreement.692 because asylum seekers do not have a Health Insurance Card. They can go to Non-EU citizens with long-term residence Health centres but the medical personnel permit and registered permanent residence may not be familiar with their situation and in Slovenia, receiving financial social their rights. assistance or fulfilling conditions to receive it, and their family members 693 are entitled It should be noted that, since the 2013 696 to the coverage of the difference between Dublin III Regulation , only one country the full cost of the health treatment and the can consider an asylum application. Thus, if amount covered by the compulsory another country requests the responsibility insurance, unless it is already fully covered. for the application within the first three This difference is paid by the state.694 months of the proceedings, the asylum seeker will lose his/her right to reside in Asylum seekers Slovenia and any rights attached to it. Asylum seekers are only entitled to urgent Pregnant asylum seekers medical assistance, which is defined in Article 86 of the International protection Asylum seekers are entitled to free Act in force from 24 April 2016.695 Besides, contraceptives, abortion, and healthcare

691 Ibid. 696 The Commonwealth Fund, INTERNATIONAL 692 Article 20 of the Law on Health Care and Health PROFILES of Health Care Systems, Australia, Insurance Op. cit. note 666 Canada, Denmark, England, France, Germany, 693 Law on the exercise of rights from public funds Italy, Japan, the Netherlands, New Zealand, (ZUPJS) in force since 2012 - Article 29 Norway, Sweden, Switzerland, and the United States , http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA New-York, 2013 KO4780 http://www.commonwealthfund.org/publications/fu 694 Article 24 of the Law on Health Care and Health nd-reports/2013/nov/international-profiles-of- Insurance op. cit. note 666 health-care-systems 695International Protection Act (ZMZ-1) – 2016 http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA KO7103

117

SLOVENIA during pregnancy and childbirth, but not to Undocumented migrants are not covered by postnatal care.697 the compulsory health insurance. They are only entitled to free urgent treatment.701 Children of asylum seekers In some cases, enumerated in article 73 of Children of asylum seekers are entitled to 702 healthcare under the same conditions as the Foreigners Act of 23th June 2011 , nationals of the Republic of Slovenia. This undocumented migrants can get a status of means that there are entitled to compulsory tolerance or a permit to stay on the territory. insurance, which covers all medical Article 75 of the same act states that services.698 foreigners with tolerated status have the right to urgent medical assistance. Refugees and persons under In practice, undocumented migrants and international protection persons with tolerated status turn to health Refugees have the same rights as the centres for persons without compulsory nationals of the Republic of Slovenia health insurance, to pro bono clinics or to concerning access to healthcare. NGOs. Articles 90 and 98 of the International Undocumented pregnant women Protection Act 699 states that persons who are Undocumented pregnant women only have granted international protection in Slovenia the right to urgent medical assistance. have the right to reside and to receive healthcare. Women who are not compulsory insured in Slovenia must pay for delivery as it is Refugees are also cited in the Article 15 of considered foreseen and thus not an urgent the Law on Health Care and Health medical procedure. However, the Insurance as one of the vulnerable groups termination of pregnancy should be entitled to compulsory health insurance, considered as emergency medical unless they are insured somewhere else. assistance. Pregnant refugees Children of undocumented migrants Women who obtained the refugee status are Children of undocumented migrants are not entitled to the same care as Slovenia covered by the compulsory health nationals. Pregnant refugee women are thus insurance. entitled to pre- and post-natal care and delivery care. However, Article 9 §25 of the Rules on compulsory health insurance 703 states that Children of refugees children up to 18 years attending school and Children of refugees are entitled to not compulsorily insured, because their healthcare under the same conditions as parents do not provide care for them or nationals of the Republic of Slovenia. This because their parents do not qualify for means that there are entitled to compulsory inclusion in the compulsory insurance can insurance, which covers all medical access compulsory insurance if and when services.700 the municipality they live in decides it.

Undocumented migrants

697 Article 86 of the International Protection Act Op. 701 Op. cit. note 677 cit. note 695 702The Foreigners Act – 2011 (Zakon o tujcih ) 698 Ibid. http://www.uradni-list.si/1/objava.jsp?sop=2011- 699 Ibid. 01-2360 700 Ibid. 703 Op. cit. note 666

118

SLOVENIA

In practice, municipalities grant healthcare nationals and are thus only entitled to urgent insurance under this provision only to medical assistance. children who hold at least a temporary permit of residence in Slovenia. EU mobile citizens without insurance but with a minimum income can access the Termination of pregnancy compulsory health insurance if they fall into one of the categories listed in article 15 of The right to abortion in Slovenia is provided the Law on Health Care and Health in the Article 55 of the Constitution of the Insurance.707 Republic of Slovenia and regulated by the Health Measures in Exercising Freedom of EU mobile citizens insured in their country Choice in Childbearing Act of 1977 of origin can access healthcare services in (ZZUUP).704 Slovenia with their European Health Insurance Card (EHIC), if they can cover Abortion is carried out at the request of the the potential costs. woman, with a referral from a personal physician until the 10 th week of the The EHIC covers its holder for the pregnancy. After this time limit, abortion is treatment of medical conditions, emergency possible only if the risk of the procedure to care services and maternity care, providing the life and health of the pregnant women the reason of the visit in Slovenia is not to and for her future motherhood is lower than give birth. It does not cover planned the danger threatening the pregnant woman treatment.708 or a child due to the continuation of the pregnancy. Bilateral agreements Termination of pregnancy is reimbursed up Slovenia concluded international to 80% of the amount by the compulsory agreements with a number of countries. insurance.705 Agreements with countries of the former Yugoslavia in particular contain bilateral Uninsured women have to pay for the measures in the field of health. People termination of their pregnancy. The price insured in their country of origin and their for abortion varies greatly depending on the family members have facilitated access to health service providers. healthcare in Slovenia pursuant to the agreements. 709 EU mobile citizens Thanks to the bilateral agreements with Since the 2004 European Directive Bosnia and Herzegovina and Macedonia, 2004/38/EC 706 , after three months of insured persons from one contractor state residence in Slovenia, EU citizens with holding permanent residence in another insufficient resources and no health contractor state are provided access to coverage are considered undocumented health treatment in their place of migrants. They have the same access to residence.710 healthcare as undocumented third-country

704 Freedom Of Choice In Childbearing Act – 1977 709https://ec.europa.eu/home- http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA affairs/sites/homeaffairs/files/what-we- KO408 do/networks/european_migration_network/reports/d 705 Article 23 of the Law on Health Care and Health ocs/emn-studies/illegally- Insurance op. cit. note 666 resident/24.slovenia_national_report_social_securit 706 Directive 2004/38/EC y_en_version.pdf 707 Op. cit note 666 710 Art. 12/3 in both agreements 708http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/41 Agreement on Social Security between the Republic A664904BA3992AC1256E890048C1AB of Slovenia and Bosnia and Herzegovina (Official Gazette of RS, No. 37/2008 – MP No. 10/2008)

119

SLOVENIA

Agreements with Serbia and Montenegro disease epidemics as listed in the permit access to medical treatment, in international health rules of the World conformity with the legislation of the Health Organization, or from areas where second state and to the burden of the there are contagious diseases that might competent holders from the first state, to endanger human health and for which certain categories of posted workers according to the law regulating contagious regardless of their permanent or temporary diseases (Contagious Diseases Act ), special residence.711 measures have to be taken.713 This also applies to EU citizens, who can be denied Unaccompanied minors admission in Slovenia.714 Unaccompanied minors asking for asylum Article 119 §3 of the Foreigners Act 715 are entitled to healthcare under the same states that EU citizens can apply for a conditions as nationals of the Republic of residency permit in Slovenia for “family Slovenia. reunification and other reasons”. Seriously They are attributed legal representatives ill EU citizens can thus apply for residency who accompany them in the asylum process under this provision, although positive and make sure they receive the necessary outcomes are unlikely. help. Prevention and treatment of Unaccompanied minors who do not apply infectious diseases for asylum are considered as undocumented migrants and are thus only entitled to urgent According to the Contagious Diseases Act medical assistance. of 2006, everyone has the right to protection against infectious diseases and nosocomial Protection of seriously ill infections and the duty to protect their health and the health of others against these foreign nationals diseases.716 Prevention, testing and According to Article 73 of the Foreigners treatment of infectious diseases are defined Act 712 , a foreigner who was ordered to leave in Contagious Diseases Act. Slovenia can get a permission to stay if a doctor advises against immediate removal As stated in the article 23 of Law on Health 717 from the country because of the foreigner's Care and Health Insurance prevention, state of health. detection and treatment of HIV infection and contagious diseases for which it is The expulsion of undocumented migrants required by the law to implement measures can be suspended as long as their (or a to prevent their spread, are provided and family member’s) state of health would fully covered by the compulsory health make i t “inadvisable” for them to travel. insurance. Potentially ill foreigners can be refused a temporary residence in Slovenia when they come from areas where there are contagious

Agreement on Social Security between the Republic 712 The Foreigners Act - 2011 of Slovenia and the Republic of Macedonia (Official 713 Foreigners Act – Article 55 Gazette of RS, No. 35/2000 – MP No. 10/2000) 714 Foreigners Act – Article 118 711 Art. 12/3 in both agreements 715 Foreigners Act Agreement on Social Security between the Republic 716 Contagious Diseases Act of 7 th March 2006 of Slovenia and the Republic of Serbia (Official http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA Gazette of RS, No. 30/2010 – MP No. 5/2010) KO4833. – Article 4 http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/ 717 Op. cit. note 666 89293/102546/F9055267/MGO-2011-L-89293.pdf

120

SLOVENIA

Contagious diseases for which it is required The Ljubljana centre also provides to take measures are determined in Article 8 healthcare to “erased people”. Erased of the Contagious Diseases Act.718 persons are persons from other republics of the former Yugoslavia who were at the time Article 22 of the Contagious Diseases Act of declaration of independence living in lists the diseases against which vaccination Slovenia but did not apply for or did not is compulsory and covered by the obtain Slovene nationality. Therefore, they compulsory insurance. Thus, vaccination is were left without legal Slovene documents. compulsory for hepatitis B, diphtheria, tetanus, pertussis, poliomyelitis, measles, mumps, rubella and other infectious diseases.719 Uninsured people can get anonymous and free of charge testing and counselling for HIV and Hepatitis C at a Clinic for Infectious Diseases and Febrile Illnesses (Klinika za infekcijske bolezni in vročinska stanja ), but no treatment is guaranteed.

Health centres for uninsured persons Health centres for persons without compulsory health insurance exist in Slovenia. These pro-bono clinics, located in Ljubljana, Maribor, Koper and other cities across the country are the result of programmes established by different organisations as Caritas or Slovene Philanthropy. Health centres provide medical assistance and services carried out by physicians at the primary level and specialists, who are all volunteers in the health centre. Medical services provided include vaccination for children and antenatal and postnatal care for women. The population seeking healthcare in these centres is composed mostly of homeless people, persons who do not have a residence permit as undocumented migrants and foreign nationals with police tolerance status and persons who are not entitled to compulsory insurance or who just lost their entitlement and who do not have sufficient resources to pay for the healthcare.

718 Op. cit. note 716 719 Op. cit. note 716

121

SPAIN

country, are entitled to the protection of SPAIN their health and to healthcare ”. National Health System Access to care within the Spanish National Health System is regulated by Article 3 of Constitutional basis Law 16/2003 of 28 May 2003 on the cohesion and quality of the National Health The Spanish Constitution of 1978 System.725 recognises in Article 43 the “ right to health protection ”.720 It also claims that “ it is As part of its austerity measures, the incumbent upon the public authorities to Spanish parliament adopted Royal Decree- organise and watch over public health by Law 16/2012 on 20 April 2012 “ on urgent means of preventive measures and the measures to ensure sustainability of the necessary benefits and services. The law national health system and to improve the shall establish the rights and duties of all in quality and safety of its services ”, which this respect ”.721 came into force on 1 September 2012. Organisation and funding of Spanish Article 1 of Royal Decree-Law 16/2012 726 healthcare system modifies Article 3 of Law 16/2003 727 and 728 The Spanish healthcare system is based on Article 12 of Organic Law 4/2000. solidarity. It aims to redistribute income According to the new provisions, only amongst Spanish citizens.722 Indeed, all individuals in the following situations have citizens contribute according to their the right to be covered by the National Health System (Article 3, Section 2 and 4 of incomes and receive healthcare services 729 according to their health needs. Law 16/2003 ):

The National Health System comprises the Ø workers, retired people and public healthcare administration of both the beneficiaries of social security Central Government Administration and the services (e.g. unemployment autonomous communities (AC), working in benefits); coordination to cover all the healthcare Ø people who have “exhausted” their duties and benefits for which the public right to unemployment benefits and 723 do not benefit from any other authorities are legally responsible. allowances; Accessing Spain healthcare system after Ø spouses, dependent ex-spouses, 2012 Royal-Decree descendants or dependants under 26 years old (or older in the case of General Health Law No. 14/1986 of 25 724 people with disabilities categorised as April 1986 states that “ every Spanish equal to or over 65%) of an insured citizen, as well as foreign nationals who person. have established their residence in the

720Constitution of Spain of 1978 , 725Law of 28 May 2003 https://www.essex.ac.uk/armedcon/world/europe/w http://www.boe.es/diario_boe/txt.php?id=BOE-A- estern_europe/spain/SpainConstitution.pdf 2003-10715 721 Ibid. 726 Royal Decree-Law of 20 April 2012 722 Health Information Institute, National Health http://www.boe.es/diario_boe/txt.php?id=BOE-A- System of Spain , Madrid, 2010, 2012-5403 http://www.msssi.gob.es/organizacion/sns/docs/sns 727 Op. cit. note 725 2010/Main.pdf 728Organic Law of 11 January 2000 , 723 Ibid. http://www.boe.es/buscar/act.php?id=BOE-A- 724Law of 25 April 1986 2000-544 http://www.boe.es/buscar/doc.php?id=BOE-A- 729 Op. cit. note 725 1986-10499

122

SPAIN

Access to public health services is obtained they also deal with health promotion and through the Individual Healthcare Card disease prevention. (IHC) issued by each health service. This is the document which identifies every citizen A patient with health coverage does not or resident as a healthcare user throughout have to pay doctors’ fees in advance. the National Health System. This Individual However, each patient has to pay a part of 731 Health Card was (before 2012) obtained the costs of medicines which are included under three conditions: the person had to be in the catalogue of medicines covered by the 732 registered with the local municipality, social security system (others are not 733 provide a valid identity document and covered). In the latter case, the patient provide proof of residence in the must pay for the treatment in its entirety. autonomous community.730 Specialist care is provided in specialist care Since the Royal Decree-Law 1192/2012 centres and hospitals in the form of regulating the insured and beneficiary status outpatient and inpatient care. Patients who for the purpose of medical care in Spain, receive specialist care and treatment are covered by the public funds through the expected to be referred back to their primary National Health System, it is necessary to healthcare doctor who, based on the fall in the “insured” or “beneficiary” patient’s full medical history, including the categories, as defined by the National medical notes issued by the specialist, Institute of Social Security (INSS) to assumes responsibility for any necessary benefit from health coverage. Then, with follow-up treatment and care. the required documents issued by the INSS, individuals may apply for the IHC at any Reform ending universal access to care health centre. Before April 2012, the Law 16/2003 734 considered as holders of “ the right to health All IHC holders can benefit from all protection and healthcare ”: healthcare levels, primary and specialist care. Ø all Spanish citizens and foreign nationals who are on Spanish territory Primary healthcare makes basic within the conditions provided in healthcare services available from any place [old] Article 12 of Organic Law no. of residence. The main facilities are the 4/2000; healthcare centres, staffed by Ø EU citizens with health coverage and multidisciplinary teams comprising general sufficient resources [who have rights practitioners, paediatricians, nurses and derived from European legislation]; administrative staff and, in some cases, Ø nationals of non-EU countries [who social workers, midwives and have rights derived from different physiotherapists. Since primary healthcare international treaties]. services are located within the community, In this respect, Spain was the only country with real access to care for all people

730 Health For Undocumented Migrants and Asylum 2012-5403; http://www.ocu.org/salud/derechos- seekers (HUMA) Network, Accès aux soins des paciente/noticias/reforma-sanitaria-copago personnes sans autorisation de séjour et des 732 There are more than 15 000 medicines covered, demandeurs d’asile dans 10 pays de l’UE – http://www.msssi.gob.es/profesionales/nomenclator Législation et Pratique , 2009, .do http://www.aedh.eu/plugins/fckeditor/userfiles/file/ 733 List of medicines which have been excluded in Asile%20et%20immigration/Legislation_et_pratiqu 2012, e_rapport_HUMA_FR.pdf http://www.msssi.gob.es/profesionales/farmacia/pdf 731 Op. cit. note 726; /BOEA201210952.pdf http://www.boe.es/diario_boe/txt.php?id=BOE-A- 734 Op. cit. note 725

123

SPAIN residing in the country whatever their (which, in reality, is the same as private financial resources or legal status. insurance) are limited to the “basic package of services” of the National Health System, With the Royal-Decree 1192/2012, access meaning that expenses such as non-urgent to care is considerably reduced. This reform medical transportation, drugs or external radically changed Spanish health coverage, prosthesis (e.g. a wheelchair) are not leaving thousands of undocumented included in the package. However, migrants without health insurance, among emergency transportation is included in the whom EU nationals staying more than three “basic package” (Article 8bis of Law months without sufficient resources and 16/2003). without health coverage. This measure abandoned large sections of the population The change in the law motivated six unable to afford private health insurance.735 autonomous communities to appeal to the Constitutional Court, alleging a breach of These provisions mean that the IHC can universality as a principle. The appeals were now only be obtained on the grounds of also submitted on the grounds of procedural working status (indeed, except for issues (e.g. the Government had not dependants, only ex-workers who have justified the “extraordinary and urgent worked long enough can benefit from social necessity” required to use leg al terms of the security benefits). The “ residence ” criterion Royal Decree), as well as on the grounds of is no longer sufficient to be eligible for the a breach of regional competences, since the National Health System. management of healthcare is an issue of regional domain, whereas this Decree has a However, according to Royal Decree national scope. Three of the appeals have 1192/2012, Spanish citizens, EU-EEA- already been rejected (those concerning Swiss citizens and third-country nationals who hold a Spanish residence permit but Navarra, Andalusia and Asturias). who do not belong to one of the categories The European Committee of Social Rights mentioned above can be considered as stated in November 2014 that “the “insured ” if their annual income does not economic crisis cannot serve as a pretext exceed €100,000 and if they do not have for a restriction or denial of access to 736 health coverage. In this case, they have to healthcare that affects the very substance of register with their municipality in order to the r ight of access to healthcare” , meaning obtain their IHC, under the same conditions that states have the obligation to provide as before the reform. assistance to people regardless of their 737 Finally, patients who cannot claim residency status. “insured ” status (as a consequence of Consequences of the 2012 health reform Article 3 of Law 16/2003 mentioned above) in Spain can only access healthcare services if they pay for it themselves or if they are eligible Royal Decree 16/2012 738 , adopted on 20 for a “special provision”. Furthermore, the April 2012, establishes in Spain a health services included in this special provision system close to that of insurance and

735 Europe Public Health Alliance (EPHA), EPHA Articles 3, 11, 12, 13 and 14 of the 1961 Charter, Press Release: Spain on brink of failing its most November 2014, vulnerable via new health law - A law bringing to an http://www.coe.int/t/dghl/monitoring/socialcharter/ end decades-long free and universal health care Conclusions/State/SpainXX2_en.pdf does not benefit anybody, Brussels, 2012, 738Royal Decree 16/2012 http://www.epha.org/a/5161 https://www.boe.es/diario_boe/txt.php?id=BOE-A- 736 Op. cit. note 726 2012-5403 737 European social charter, European Committee of Social Rights Conclusions XX-2 (ESPAGNE)

124

SPAIN therefore far from the idea of a system of In 2015, the Spanish government repeatedly universal access to healthcare.739 It announced a change in the law, allowing all constitutes a structural transformation. undocumented migrants to access healthcare again, without going completely The consequences of the reform seriously back to the former health cards system. Yet, hinder access to care for people suffering this change was never realised. from mental health issues, drug users and other vulnerable groups such as homeless Access to healthcare for people. It may also have real, dangerous effects on the population’s health, migrants “specifically concerning infectious diseases Asylum seekers and refugees like tuberculosis or HIV-infected patients ”.740 Access to healthcare services for asylum seekers is regulated at national level by According to data from the Federation of Articles 16, §2 and 18§1 of Law 12/2009 744 Associations Defending Public Health as well as by the fourth additional provision (Federacion de Asociaciones en Defensa de of Royal Decree 1192/2012.745 They are la Sanidad Publica – FADSP ), the entitled to access healthcare on equal healthcare co-payment established by the grounds to Spanish nationals and authorised Royal Decree has had a severe impact on residents with regard to coverage and individuals with low incomes, such as conditions. pensioners: 17% of pensioners have been unable to continue a course of treatment due Refugees and those benefitting from to high and increasing costs. subsidiary protection have access to health services either as recipients of social In addition, with regard to the Royal security benefits (workers, unemployed Decree-Law, the European Committee of people or those dependent on an insured Social Rights has considered repressive the person) or as non-nationals holding a fact that undocumented migrants are residence permit.746 As asylum seekers, 741 excluded from the healthcare system. It they have the same access to healthcare as also added that times of economic crisis nationals and authorised residents. cannot be an excuse to denying or restricting the right to health to this In order to obtain their IHC, they have to vulnerable group.742 register with their municipality under the same conditions as prior to the 2012 reform. MdM ES reports situations in which people are asked, before they receive any kind of Pregnant asylum seekers and refugees treatment, to sign a commitment to pay by Pregnant women seeking asylum or with the emergency care services. They receive a refugee status have the same access to bill after being treated and have to apply for 743 healthcare as nationals and authorised it to be annulled. residents. They have access to antenatal,

739 Doctors of the World – Médecins du Monde ES, 741 Op. cit. note 739 Dos años de reforma sanitaria : más vidas humanas 742 Op. cit. note 739 en riesgo , April 2014, 743 Op. cit. note 739 http://www.medicosdelmundo.org/index.php/mod.d 744Law of 30 October 2009 , ocumentos/mem.descargar/fichero.documentos_Im http://www.boe.es/buscar/act.php?id=BOE-A- pacto-Reforma-Sanitaria-Medicos-del- 2009-17242 Mundo_3ec0bdf9%232E%23pdf 745 Royal Decree of 3 August 2012 740 H. Legido-Quigley, “ Erosion of universal health 746 Op. cit. note 744 coverage in Spain”, The Lancet , 2013.

125

SPAIN delivery and postnatal care and pregnancy Undocumented migrants who are excluded termination. from the healthcare scheme may obtain personal health insurance after at least one Children of asylum seekers and refugees year of residence in Spain, if they can afford Pursuing to Article 1 of Royal Decree-Law to pay for it. This health insurance costs €60 16/2012, children of asylum seekers and per month for those below 65 years of age refugees have the same access to healthcare and €157 per month for those aged 65 and as the children of nationals and authorised above. residents. This includes vaccinations. Those who cannot afford to pay for personal Undocumented migrants health insurance and/or who have been living in Spain for less than one year do not Before the adoption of Royal Decree have access to healthcare. 16/2012747 , access to the Spanish National Health System was universal and free of It must be stressed that each autonomous charge for everyone, including community in Spain can implement specific undocumented migrants, on production of regulations regarding access to and costs of the IHC. This could be obtained by healthcare for undocumented migrants.750 registering with the local municipality and This situation creates administrative with proof of identity and residence in most confusion and therefore inequality in access regions. to healthcare depending on where someone lives.751 Article 1 of Royal Decree-Law 16/2012 748 introduced a new Article 3ter to Law Undocumented pregnant women 16/2003749 which modified the old system. Article 1 of Royal Decree-Law 16/2012 According to Article 3ter, undocumented introducing the new Article 3ter states that migrants are completely excluded from the foreign nationals who are neither registered healthcare scheme except that: nor authorised to reside in Spain will be covered for antenatal, delivery and Ø children under 18 years old and postnatal care. pregnant women have access to primary and secondary care However, since the 2012 reform, a number (including antenatal, delivery and of Non-Governmental Organisations and postnatal care and vaccination, media have reported how pregnant women however they must pay a share of often struggle to gain access to medical 752 their prescriptions under the same care. Indeed, women are asked to present conditions as nationals); their IHC and if they do not have one, they Ø emergency care should remain freely are instructed to go to the emergency 753 accessible. department.

747 Op. cit. note 726 nadelectura&web=www.elsevier.es&lan=es&ficher 748 Op. cit. note 726 o=S0213-005X(14)00362-0.pdf&eop=1&early=si 749 Op. cit. note 725 751 Ibid. 750 J. A. Pérez-Molina and F. Pulidob,“¿Cómo está 752 Op. cit. note 739 afectando la aplicación del nuevo marco legal 753Yosi - sanidad universal, Un año de exclusión sanitario a la asistencia de los inmigrantes infectados sanitaria, un año de desobediencia, Campaña de por el VIH en situación irregular en Espana?”, desobediencia al Real Decreto-Ley 16/2012 , 2013, Elsevier , 2014 http://yosisanidaduniversal.net/media/blogs/materia http://apps.elsevier.es/watermark/ctl_servlet?_f=10 les/DossierAniversarioRDL.pdf ; I. Benitez, “Health &pident_articulo=0&pident_usuario=0&pcontactid Care for Immigrants Crumbling in Spain”, Inter =&pident_revista=28&ty=0&accion=L&origen=zo Press Service News Agency , 24 May 2013,

126

SPAIN

Furthermore, because of the poor level of Health System provides childhood information around the reform, health immunisations, regardless of their providers and undocumented pregnant nationality or status in the country. women often do not know that the 2012 Royal Decree allows the latter to have To receive healthcare under the same access to healthcare during their pregnancy. conditions as Spanish citizens, children of undocumented migrants must have an The consequences are serious, as many Individual Healthcare Card. The IHC can women only seek medical attention when only be obtained under three conditions: the their situation is already concerning and person has to be registered at the local complicated. It has been reported that municipality ( Padron ), provide a valid women who have been through a identity document and provide proof of complicated birth have sometimes had to residence in the autonomous community. pay a bill of up to €3,300 .754 EU citizens The legal framework implemented by the Directive 2004/38 was transposed into the Royal Decree is theoretically relatively Spanish legal framework by Royal Decree adequate for emergency situations and 240/2007 of 16 February, on the entry, free pregnancies. Nonetheless, in practice, movement and residence in Spain of women struggle with the administration to citizens of the Member States of the get the necessary IHC and therefore do not European Union and other states parties to have proper access to the medical care they the agreement on the European Economic need. Area. Children of undocumented migrants Royal Decree 240/2007 modified by Royal Article 1 of Royal Decree-Law 16/2012 Decree 16/2012 states that EU citizens have modifying Article 3ter of Law 16/2003 the right to reside only if they have health provides that “ in any case, foreign nationals coverage and have sufficient resources for who are less than 18 years old receive themselves and their family members not to healthcare under the same conditions as become a burden on the social assistance Spanish citizens” .755 system of the host Member State. This provision excludes destitute EU citizens. This provision states clearly that all minors in Spain, whatever their administrative In addition, in 2013, the European status, will be granted access to all Commission raised concerns about the issue healthcare services, under the same of the EHIC.757 European patients who hold conditions as Spanish minors i.e. free of an EHIC have been denied access to public charge. healthcare. 758

Article 2 of Royal Decree-Law 16/2012 Unaccompanied minors provides for the basic health services Article 3ter, subparagraph 4 of Law package, which includes prevention 759 services.756 Indeed, the Spanish National 16/2003 (introduced by Article 1 of http://www.ipsnews.net/2013/05/health-care-for- 756 Op. cit. note 726 immigrants-crumbling-in-spain/ 757European Commission, European Health 754 G. Sanchez, “Embarazadas, menores y urgencias : Insurance Card: Commission expresses concerns los incumplimientos de una ley sanitaria about refusals by Spanish public hospitals to discriminatoria”, eldiario.es , 31 August 2013, recognise EHIC , Brussels, 30 May 2013, http://www.eldiario.es/desalambre/inmigracion- http://europa.eu/rapid/press-release_IP-13- sanidad_sin_papeles- 474_en.htm?locale=en un_ano_sin_sanidad_universal_0_170433089.html 758 Ibid. 755 Op. cit. note 726 759Op. cit. note 725

127

SPAIN

Royal Decree-Law 16/2012) provides that recognising the right to free healthcare for “in any case, foreign nationals who are less undocumented migrants and to lift the than 18 years old receive healthcare under suspension of the other provisions of the the same conditions as Spanish citizens”. law.762 This provision states clearly that all minors, including unaccompanied minors, have To support this decision, it was argued that, access to healthcare services, under the given the vulnerability of the Spanish same conditions as Spanish minors, i.e. free economy, a region could not decide to fully of charge. cover healthcare for undocumented migrants. Regarding more specifically unaccompanied minors “seeking asylum”, Castile and Leon – La Rioja Article 47 of Law 12/2009 points out that Concerning Castile and Leon, and La Rioja, minors seeking international protection and no specific regulation was implemented. who are “ victims of any form of abuse [...] Nonetheless, it is important to stress that in or victims of an armed conflict, receive all Castile and Leon, undocumented migrants healthcare as well as necessary specialized who were not able to renew their IHC after and psychological care” . the 2012 Royal Decree-Law can still access healthcare if they had one before the Autonomous communities reform.763 Both regions provide healthcare in cases of risk for national public health. Cantabria Cantabria’s Programme of Social To access healthcare in La Rioja, Protection and Public Health 760 enables undocumented migrants must have resided access to primary and specialised there for at least three months. healthcare, as well as pharmaceutical Andalusia – Asturias – Basque Country benefits, for those migrants excluded by the Royal Decree Law, provided they fulfil These regions have contested the Royal certain administrative conditions. Decree-Law, rejecting its enforcement and developing mechanisms to ensure access to We have no information on any other medical assistance for undocumented alternatives to access to treatment for those migrants on the same terms as the rest of the people – as people with infectious diseases population. The way this is implemented – who cannot benefit from the programme. varies from one case to another (e.g. the General Directorate of Health Services in Navarre Andalusia provides a temporary health card In March 2013, the Regional Parliament – Documento de reconocimiento temporal passed a law ( Ley Foral 8/2013 761 ), del derecho a la Asistencia Sanitaria ) and, granting any resident in Navarra – including in the case of, the Basque Country requires undocumented ones – the right to free and a minimum period of registration in the public healthcare. This law has been local census. appealed before the Constitutional Court. The court issued a decision on 8 April 2014 However, in general terms, they all provide and decided to maintain the suspension of access to both primary and specialised the provisions of the 8/2013 Law healthcare, as well to pharmaceutical

760http://www.saludcantabria.es/index.php?page=pr http://www.navarra.es/home_es/Actualidad/BON/B ograma-cantabro-de-proteccion-social-de-la-salud- oletines/2013/43/Anuncio-5/ publica 762http://hj.tribunalconstitucional.es/en/Resolucion/ 761Ley Foral 8/2013 Show/23930 763 Op. cit. note 750

128

SPAIN services, thus covering care for people with Valencian Community.767 In the same year, infectious diseases. however the Spanish Constitutional Court decided to suspend the law, before lifting Madrid – Balearic Islands – Catalonia the suspension in 2016.768 In Madrid, the Balearic Islands and Catalonia, the medical treatment of Galicia – Region of Murcia – Aragon infectious diseases such as HIV or The government of Galicia decided to tuberculosis is considered as a matter of maintain access to healthcare for public health included in the scope of the undocumented migrants who lack sufficient 2012 Royal Decree.764 Nonetheless, in resources, do not receive benefits and reside Madrid, this treatment is charged to the in Galicia for more than 6 months.769 patient. In the Balearic Islands, the treatment is free and the same is true for In the Region of Murcia, undocumented Catalonia.765 migrants without insurance, who lack sufficient resources and who are effectively The Community of Madrid did not issue any residing in Murcia can access healthcare law for providing access to healthcare for through the Social Protection Program for undocumented migrants but sent an internal the prevention and promotion of statement to Health Centres with the order healthcare.770 to provide medical attention to everyone. The same is true for undocumented Castile-La-Mancha migrants residing in Aragon, through st Aragon’s Social protection and public Since 1 March 2017, undocumented 771 migrants can apply for a medical card that health programme. allows them to have free access to public Extremadura healthcare. It concerns undocumented migrants aged 18 or over, effectively In 2016, the government of Extremadura residing in Castile-La-Mancha and who enacted a law to fight social exclusion, lack sufficient resources. 766 providing access to healthcare for undocumented migrants residing for more Valencian Community than 6 months in Extremadura.772 In 2015, the Valencian Community enacted Canary Islands a law to allow the same access to healthcare as Spanish citizens for undocumented In the Canary Islands, undocumented migrants without private insurance and migrants can access healthcare after three 773 residing for more than three months in the months of residence in the community.

764 Op. cit. note 750 770 Instrucciones 2/2016 y 6/2015, del Director 765 Op. cit. note 750 Gerente del Servicio Murciano de Salud 766http://docm.castillalamancha.es/portaldocm/desc https://www.borm.es/borm/documento?obj=anu&id argarArchivo.do?ruta=2016/02/23/pdf/2016_1920.p =738537 df&tipo=rutaDocm 771 Instrucción of 30 April 2013, government of 767https://elpais.com/ccaa/2015/07/16/valencia/1437 Aragon 042745_880644.html http://www.nadiesinfuturo.org/IMG/pdf/Instruccion 768 http://www.eldiario.es/cv/Constitucional- _de_30_de_abril_2013.pdf levanta-suspension-universal- 772 Decree-law 1/2016, of May 10, on extraordinary valenciana_0_491001207.html measures against social exclusion 769 https://www.boe.es/buscar/pdf/2016/BOE-A-2016- http://emigracion.xunta.gal/es/actualidad/noticia/sa 7692-consolidado.pdf nidade-garantiza-acceso-la-asistencia-las-y- 773 inmigrantes-irregulares-sin https://www.redaccionmedica.com/autonomias/can

129

SPAIN

Protection of seriously ill (excluding those under 18 years old and foreign nationals pregnant women), some autonomous communities in Spain have developed Article 126 of Royal Decree 557/2011 of 20 different laws or regulations in order to April 2011 774 states that a temporary allow undocumented migrants access to residence permit on humanitarian grounds healthcare 777 and, in particular, regarding can be granted to a foreign national under the treatment of infectious diseases.778 the following conditions: In February of 2014, the Ministry of Health, Ø the individual must prove that they Social Services and Equality published a are affected by a serious disease document entitled ‘Healthcare interventions which occurred after 775 their arrival in in situations of public health risk’ the country (this condition does not (Intervención Sanitaria en situaciones de apply to foreign children) and which riesgo para la Salud Pública ) approved by needs specialist medical care; all the autonomous communities 779 . This Ø there is no access to the treatment in document does not specifically refer to the country of origin; undocumented migrants, but broadly to any Ø the absence of treatment or its person who does not benefit from the interruption could lead to a serious National Health System.780 risk for the patient’s health or life. It establishes the right of everyone to In order to demonstrate the need, a clinical healthcare (including preventive care, report must be issued by the competent follow-up and monitoring) as soon as it is medical authority. Article 130 of Royal suspected that an individual has an Decree 557/2011 specifies that this infectious disease subject to residence permit for humanitarian reasons epidemiological control and/or elimination is valid for a one-year period and is at a national or international level and also renewable as long as the conditions are met. for people with an infectious disease that requires long-term and chronic medical treatment.781 Treatment of infectious Various diseases are included such as HIV, 782 diseases hepatitis B and C, tuberculosis. The entry into force of Royal Decree Nevertheless, even though specific 16/2012776 in Spain in September 2012 led regulation may be established in Spain, to the exclusion of a large number of 37% of doctors who are specialists in undocumented migrants from the National infectious diseases said in 2015 that they Healthcare System. ha ve real difficulties “always or most of the time” in treating HIV positive patients who Concerning the specific medical attention to are undocumented migrants.783 be given to undocumented migrants arias/asi-es-la-estrategia-de-canarias-para-cobrar-la- 779 Ministerio de Sanidad, servicios sociales e sanidad-a-los-sin-papeles--1566 igualdad, Intervencion sanitaria en situaciones de 774Royal Decree 557/2011 riesgo para la salud publica , 18 December 2013, https://www.boe.es/buscar/act.php?id=BOE-A- http://www.msssi.gob.es/profesionales/saludPublica 2011-7703 /docs/IntervencionSanitariaRiesgoSP.pdf 775 It is very difficult for doctors to attest if the 780 Ibid. disease occurred after or before arrival. 781 Ibid. 776 Op. cit. note 726 782 Ibid. 777 Op. cit. note 739 783 Ibid. 778 Op. cit. note 750

130

SWEDEN

The Swedish healthcare system is organised SWEDEN into three levels: national, regional and local. Predominantly, these three entities National Health System handle the funding of the National Health System (NHS). Government funding comes Constitutional basis mainly from proportional income taxes The Constitution of the Kingdom of levied by county councils/regions and Sweden of 1974, in its Article 2 (Chapter 1), municipalities, and some national and 788 states that “ Public power shall be exercised indirect tax revenues. with respect for the equal worth of all and Only a minor proportion of the population the liberty and dignity of the private person. has private health insurance, which is The personal, economic and cultural usually paid by their employer. This private welfare of the private person shall be insurance is usually purchased to gain a fundamental aims of public activity. In faster access to specialist care. particular, it shall be incumbent upon the public institutions to secure the right to With primary responsibility for the delivery health, employment, housing and of quality healthcare at the level of the education, and to promote social care and county councils/regions and municipalities, social security […] ”.784 the Swedish governance model is a mix of a decentralised organisation of healthcare In addition, Article 7 (Chapter 8) services and centralised setting of establishes that “ with authority in law, the standards, supervision and compilation of Government may, without hindrance of the performance information on county/region- provisions of Article 3 or 5, adopt, by means based services.789 of a statutory instrument, provisions relating to matters other than taxes, At the national level, the Ministry of Health provided such provisions relate to any of the and Social Affairs is responsible for overall following matters: the protection of life, healthcare policy. It establishes principles health, or personal safety […] ”.785 and guidelines for care and sets the political agenda for health and medical care. Organisation and funding of Swedish healthcare system At the regional and local levels, the Health 790 The Swedish healthcare system has an and Medical Services Act specifies that explicit public commitment to ensure the the responsibility for ensuring that everyone health of all citizens. The Health and living in Sweden has access to good Medical Services Act 1982 786 not only healthcare lies with the county councils and incorporated equal access to services based municipalities. The Act is designed to give on the needs, but also emphasises a vision county councils and municipalities of “equal health for all” .787 considerable freedom with regard to the organisation of their health services.

784 Constitution of the Kingdom of Sweden of 1974 , 2012, 14(5):1 –159. http://www.parliament.am/library/sahmanadrutyunn http://www.hspm.org/countries/sweden25022013/li er/Sweden.pdf vinghit.aspx?Section=2.1%20Overview%20of%20t 785 Ibid. he%20health%20system&Type=Section 786The Health and Medical Service Act of 1982 , 789 OECD (2013), OECD Reviews of Health Care http://www.ilo.org/dyn/travail/docs/1643/health%2 Quality: Sweden 2013: Raising Standards, OECD 0a%20nd%20medical%20insurance%20act.pdf Publishing 787http://www.euro.who.int/en/countries/sweden http://www.nsdm.no/filarkiv/File/Eksterne_rapporte 788 Anell A, Glenngård AH, Merkur S. Sweden: r/OECD_rapport_Sverige_1_.pdf Health system review. Health Systems in Transition, 790 Op. cit. note 786

131

SWEDEN

The 21 county councils are responsible for instance, s ince 1 January 2016, certain the funding and provision of healthcare prescribed drugs in the reimbursement services, especially primary care, through a system are free for children under 18 years national network of about 1,200 public and old.796 private primary health centres covering the country 791 , in accordance with Section 3 of The Dental and Pharmaceutical Benefits the Health and Medical Service act.792 Agency (TLV) is a central government agency, which determines whether a The 290 municipalities are responsible for pharmaceutical product (or dental care long-term care for older people living at procedure) is to be subsidised by the home, in care homes or nursing homes, and State.797 for those with disabilities or long-term mental health problems. A high-cost threshold reduces patient costs for prescription medicines. The high-cost Accessing Sweden healthcare system applies for a 12-month period, starting after purchases amounting to SEK 1,100 The 1982 Health and Medical Services (€ 113798 ) for prescription medicines during Act 793 states in its Article 2 that the health a 12-month period. system must cover all nationals and authorised residents. In practice, the patient pays the full price for The publicly financed health system covers: their medicines up to around SEK 1,100 (€ 113). Following this, a discount system Ø public health and preventive services; comes into effect: Ø primary care, inpatient and out- patient specialised care; Ø between SEK 1,101 (€113) and SEK Ø emergency care, inpatient and out- 2,100 (€216), the patient pays 50% of patient prescription drugs; the cost of the medicine; Ø mental healthcare; Ø between SEK 2,101 (€216) and SEK Ø rehabilitation services; 3,900 (€401), the patient pays 25% of Ø disability support services; the cost of the medicine; Ø patient transport support services; Ø between SEK 3,901 (€401) and SEK Ø home care and long-term care, 5,400 (€555), the patient pays 10% of including nursing home care; the cost of the medicine 799 Ø dental care for children and young people; and with limited subsidies, Patients who bought medicines on adult dental care 794 prescription for SEK 2,200 (€ 226) within a 12-month period do not pay any more for The Swedish health system does not their medicines during the remaining time provide medicines free of charge to in that period.800 individuals with health coverage. However, according to the 2002 Law on The medicine fee system is different for Pharmaceutical Benefits 795 , the State asylum seekers and undocumented subsidises the cost of certain medicines. For migrants. According to the Regulation on

791 The Commonwealth Fund, 2015 International Lagar/Lagar/Svenskforfattningssamling/Lag- Profiles of Health Care Systems , Januray 2016 2002160-om-lakemedelsfo_sfs-2002-160/ 792 Op. cit. note 786 796 Law on Pharmaceutical benefits, Article 19 793 Op. cit. note 786 797 http://www.tlv.se/In-English/in-english/ 794 Op. cit. note 791 798 Exchange rate as of July 2017 795Law on Pharmaceutical Benefits of 2002 799 http://www.tlv.se/In-English/medicines-new/the- http://www.riksdagen.se/sv/Dokument- swedish-high-cost-threshold/how-it-works/ 800 Ibid.

132

SWEDEN care fees for foreign nationals staying in Asylum seekers aged under 18 are entitled Sweden without the necessary permits 801 , to a broader scope of care (see below). asylum seekers and undocumented migrants only have to pay a fee of a maximum of The Swedish Migration Agency provides SEK 50 (€5.14) per prescribed drug. This asylum seekers with a personal card (LMA applies to medicines subsidised by the card) which is valid for the length of the State. application process. This card must be produced when seeking care.804 The fees for GP consultations are set by Upon their arrival in Sweden, asylum each county and vary between SEK 150 and seekers are required to undergo a free health 300 (€15-30) across the country. Annual examination.805 out-of-pocket payments for healthcare visits are capped nationally at SEK 1,100 (€113) For any visit to a health centre or hospital, per individual. After reaching this adult asylum seekers pay SEK 50 (€5) for threshold, the patient can obtain a card that the visit or examination and around SEK 50 gives him/her access to free healthcare until (€5) when buying most prescribed 12 months have passed since the first medicines from the pharmacy.806 For visit.802 medical transport, they pay a maximum of SEK 40 (€4.11) .807 According to the Access to healthcare for Reception of Asylum Seekers Act migrants (LMA) 808 , asylum seekers who are registered are entitled to assistance, Asylum seekers and refugees including a daily allowance. Pursuant to the 2008 Law on Health and If they have paid more than SEK 400 (€41) Medical Services for Asylum Seekers and for doctor’s appointments, medical Others 803 , asylum seekers are entitled to transport and prescription drugs within six subsidised: months, asylum seekers can apply for a · health and dental care that “cannot special allowance. The Swedish Migration be postponed” Agency can compensate costs over SEK · contraceptive advice 400 (€41)809 , paying the county · pregnancy termination administrative board for medical · maternity care examinations and care received by asylum seekers.810 The county administrative board

801 Regulation on care fees for foreign nationals http://c-hm.com/wp- staying in Sweden without the necessary permits of content/uploads/2015/08/country_report_Sweden.p 2013 df http://www.riksdagen.se/sv/Dokument- 805 Swedish Migration Agency Lagar/Lagar/Svenskforfattningssamling/Forordning https://www.migrationsverket.se/English/Private- -2013412-om-varda_sfs-2013-412/) individuals/Protection-and-asylum-in- 802 Op. cit. note 791 Sweden/While-you-are-waiting-for-a- 803 Law on Health and Medical Services for Asylum decision/Health-care.html Seekers and Others of 2008 , 806 Ibid. http://www.riksdagen.se/sv/Dokument- 807 Ibid. Lagar/Lagar/Svenskforfattningssamling/Lag- 808 Reception of Asylum Seekers Act (1994:137) of 2008344-om-halso--och-s_sfs-2008-344/ 1994 , 804 C. Björ ngren Cuadra, “Policies on Health Care http://www.riksdagen.se/sv/Dokument- for Undocumented Migrants in EU27, Lagar/Lagar/Svenskforfattningssamling/Lag- Country Report, Sweden”, Healthcare in 1994137-om-mottagande-a_sfs-1994-137/ NOWHERELAND improving services for 809 Op. cit. note 805 undocumented migrants in the EU , 2010, 810 G. Abraha, “A Handbook for Asylum

133

SWEDEN can also, following an application, receive subsidiary protection are granted a 13- payment for special costly care.811 month residence permit. Asylum seekers and refugees also have Finally, in accordance with the Dublin III access to emergency care but this is not free Regulation 816 , during the three first months of charge. According to the 2013 of the asylum application, a country other Regulation on foreign nationals and care than Sweden can request the responsibility fees 812 , the caregiver should decide the cost to consider it. If this occurs, the asylum for such care that is not mentioned in the seeker will lose his/her status and the rights regulation, and emergency care is not attached to it and will be transferred to the mentioned. Therefore, each county decides country declared competent to examine what the cost for emergency care should be. his/her application. In Stockholm, and many other counties, the cost is around SEK 300 (€30). Pregnant asylum seekers and refugees Pregnant women seeking asylum have the Starting 1 June 2016, amendments made to right to receive health care under the the Reception of Asylum Seekers’ Act conditions detailed above. (LMA) 813 entered into effect. Asylum seekers who received a decision of refusal They are entitled free of charge to of entry; whose expulsion can no longer be contraceptive advice, abortion, preventive appealed or whose period of voluntary maternal care, maternity care and return has ended and who are not living with childbirth.817 children under 18 years old will no longer be entitled to stay in Swedish Migration Children of asylum seekers and refugees Agency accommodations and will have to Children of asylum seekers have the same return their LMA card opening them access access to medical and dental care as 814 to healthcare. Children will not be children of nationals and authorised affected by this reform, even if their period residents, even after their application for of voluntary return has expired, until they asylum has been rejected. turn 18 years old. Their access to healthcare is free of A new temporary law entered into force on charge.818 This is regulated by the Law on 20 July 2016. This law considerably limits Health and Medical Services for Asylum asylum seeker’s possibilities to obtain a Seekers and Others (2008:344).819 permanent residence permit and to be eligible for family reunification. It will be Undocumented migrants valid for three years and applies for asylum Undocumented migrants have the same seekers who arrived after 24 November access to healthcare as asylum seekers and 2015.815 Pursuant to this law, people refugees since the implementation of the considered refugees are granted a three-year Health and Medical Care for Certain residence permit, and people in need of

Seekers in Sweden”, Asylum Reception in Focus - A 815https://www.migrationsverket.se/English/Private- series from NTN-asylum & integration No. 5, 2007 individuals/Protection-and-asylum-in- http://www.temaasyl.se/Documents/NTG- Sweden/Frequently-asked-questions-.html dokument/A+Handbook+for+Asylum+Seekers+in+ 816 Op. cit. note 791 Sweden.pdf 817 811 Ibid. https://www.migrationsverket.se/English/Private- 812 Op. cit. note 801 individuals/Protection-and-asylum-in- 813 Op. cit. note 805 Sweden/While-you-are-waiting-for-a- 814https://www.migrationsverket.se/Privatpersoner/ decision/Health-care.html Skydd-och-asyl-i-Sverige/Medan-du-vantar/LMA- 818 Ibid. kort.html 819 Op. cit. note 803

134

SWEDEN

Foreigners Residing in Sweden without care and risk jeopardising patient Proper Documentation Act (2013:407)820 in safety ”.824 July 2013. In its interim report on the implementation Prior to the implementation of the 2013:407 of the 2013:407 law released on 15 April Act in 2013, undocumented migrants had to 2015, the Swedish Agency for Public pay full fees for receiving healthcare, even management also underlined the difficulty in cases of emergency. to interpret the formu lation “care that cannot be postponed” .825 Consequently, undocumented migrants are entitled to: Undocumented pregnant women Ø medical examination and medicine The July 2013 Health and Medical Care for covered by the Pharmaceutical Certain Foreigners Residing in Sweden Benefit 821 without Proper Documentation Act 826 Ø health care “that cannot be (2013:407) states in its article 7 that postponed” undocumented pregnant women are entitled Ø pregnancy termination to free maternal healthcare and abortion. Ø contraceptive counselling However, in practice, women are often Ø sexual and reproductive care denied maternity care. They are regularly 822 Ø maternity care rejected at the stage of signing in for care because they lack an official personal In addition, the new reform stipulates that identity number. county councils should be able to offer undocumented migrants the same level of Regarding termination of pregnancy, the 823 care that is available to residents. care related to the procedure is free of Similarly to asylum seekers, at least in charge. However, women have to pay theory, undocumented migrants can also around €5 for the termination itself, which apply for the compensation of costs over is the same amount as a regular medical €43. consultation. The 2013:407 Act was nonetheless Children of undocumented migrants criticised for its imprecision. In February 2014, the National Board of Health and Pursuant to Article 6 of the 2013 Health and Welfare ( Socialstyrelsen ) came to the Medical Care for Certain Foreigners conclusion that the terms “that cannot be Residing in Sweden without Proper 827 postponed” are “ not compatible with ethical Documentation Act , children of principles of the medical profession, not undocumented migrants have the same medically applicable in health and medical rights to medical and dental care as the children of Swedish nationals.

820 Medical Care for Certain Foreigners Residing in 823http://picum.org/picum.org/uploads/publication/ Sweden without Proper Documentation Act CoR%20Report%20Access%20to%20Healthcare% (2013:407) http://www.riksdagen.se/sv/dokument- 20EN_FR_IT_ES%202013.pdf lagar/dokument/svensk-forfattningssamling/lag- 824http://www.socialstyrelsen.se/Lists/Artikelkatalo 2013407-om-halso--och-sjukvard-till-vissa_sfs- g/Attachments/19381/2014-2-28.pdf 2013-407 825 Swedish Agency for Public management, Care 821 Op. cit. note 795 for undocumented A follow-up of the Care to people 822 Medical Care for Certain Foreigners Residing in staying in Sweden without permission , 2015, p. 18 Sweden without Proper Documentation Act http://www.statskontoret.se/globalassets/publikatio (2013:407) Article 7 ner/2015/201510.pdf 826 Op. cit. note 822 827 Op. cit. note 822

135

SWEDEN

Moreover, healthcare in Sweden is free for The government bill 2012/13:109 833 merely children under 18 years old.828 stipulates that this is possible “ only in a few cases ”, without further precision. All children in Sweden have access to free vaccination, according to a national However, in December 2014, the National vaccination programme. The vaccination Board of Health and Welfare publicly programme includes ten vaccines: polio, announced that EU citizens should be diphtheria, rubella, tetanus, pertussis, considered as undocumented (and have the hepatitis B, pneumococci, measles, mumps, same access to care as asylum seekers and and HPV (for girls only).829 third-country nationals). It then made a new statement in April 2015 and reiterated the The vaccination of young children is carried fact that EU citizens who stay longer than out at the health centre, while children at three months may, in certain cases, have primary school are vaccinated by the school access to healthcare based on the 2013 healthcare facilities. There is no distinction law.834 made regarding vaccination between children of undocumented migrants In practice, different county councils (including children of undocumented EU provide different solutions for EU mobile citizens) and children who are nationals.830 citizens without EU Health Insurance Card. Some county councils offer subsidised EU mobile citizens healthcare, pursuant to the 2013 law, but The EU directive 2004/38 831 transposed most of the uninsured EU citizens remain in into the Foreigners Act (2005:716) 832 , the former system and have to pay full fees Chapter 3a, states that, after three months, for receiving healthcare in hospitals and EU citizens can lose their right to reside in health centres. Sweden if they do not have health coverage and sufficient resources. They are then Unaccompanied minors considered as undocumented migrants. Since the 2013:407 law came into force, asylum seekers, refugees and The July 2013 Health and Medical Care for undocumented migrants have the same Certain Foreigners Residing in Sweden access to healthcare. Thus, unaccompanied without Proper Documentation Act is not minors, regardless of their status, should clear on whether destitute EU citizens who have access to healthcare, in particular to have lost the right to reside are currently vaccination. able to access healthcare on the same basis as undocumented migrants from a third- The county councils are in charge of country. providing the same quality of health services, including healthcare, for children under the age of 18 seeking asylum as for other children who are citizens or residents

828http://www.1177.se/Other- http://www.riksdagen.se/sv/dokument- languages/Engelska/Regler-och-rattigheter/Vard-i- lagar/dokument/svensk- Sverige-om-man-ar-asylsokande-gomd-eller- forfattningssamling/utlanningslag-2005716_sfs- papperslos/#section-4 2005-716 829http://www.1177.se/Fakta-och- 833 Government Bill on healthcare for people staying rad/Behandlingar/Vaccinationer-av-barn/ in Sweden without permission of 2013, p. 41 830http://www.1177.se/Stockholm/Regler-och- http://www.riksdagen.se/sv/Dokument- rattigheter/Vard-for-dig-som-befinner-dig-i- Lagar/Forslag/Propositioner-och-skrivelser/Halso-- Sverige-utan-tillstand/ och-sjukvard-till-perso_H003109/ 831 Directive 2004/38/EC 834http://www.socialstyrelsen.se/vardochomsorgfora 832Foreigners Act of 2005 sylsokandemedflera/halso- ochsjukvardochtandvard/vilkenvardskaerbjudas

136

SWEDEN in Sweden. This includes child psychiatric of eligibility for such a residence permit and dental care.835 includes the health state. The National Board of Health and Welfare However, a new bill entered into force on supervises the municipalities’ reception of 20 July 2016 for a period of three years and unaccompanied children. abolished this category of protection.840 The County administrative boards supervise This new legislation removes the possibility the chief guardians who appoint guardians to obtain a residency permit for seriously ill for unaccompanied minors seeking individuals. asylum.836 Pursuant to Chapter 19 of the 1949 law (1949:381) 837 , the chief guardian Prevention and treatment of is elected by the city council. They are infectious diseases elected for a four-year period. New rules for age assessment were Infectious diseases are covered by the 841 implemented in March 2017. Asylum Diseases Act ( Smittskyddslagen ), which seekers can undergo a voluntary medical states that certain testing and treatment are age assessment (consisting of X-ray and free of charge for residents in Sweden and MRI), which estimated outcome will be for those who are covered by EU regulation included in the decision process for the 883/2004 on the coordination of social 842 refugee status 838 . However, this age security systems. assessment methodology is known to be imprecise and can only produce an Since the 2013 Health and Medical Care for estimation of the minority of the applicant. Certain Foreigners Residing in Sweden The uncertainty of the results has been the without Proper Documentation Act, subject of much debate in Sweden. undocumented migrants also have access to testing and treatment free of charge. Protection of seriously ill The law covers diseases such as foreign nationals tuberculosis, HIV and hepatitis. According to Chapter 5, Section 6 of the Foreigners Act of 29 September 2005 839 , a Pursuant to the Communicable Disease Act residence permit can be granted to a foreign of 1998843 , physicians are obliged to notify national on grounds of exceptionally cases of communicable diseases dangerous distressing circumstances. The evaluation to society. The identity and immigration

835 U. Wernesjo, “Conditional Belonging 840 https://www.migrationsverket.se/English/About- Listening to Unaccompanied Young Refugees’ the-Migration-Agency/Legislative-changes- Voices”, Digital Comprehensive Summaries of 2016/Limited-possibilities-of-being-granted-a- Uppsala Dissertations from the Faculty of residence-permit-in-Sweden.html Social Sciences 93 . Uppsala, 2014, http://www.diva- 841Diseases Act of 2004 , portal.org/smash/get/diva2:689776/FULLTEXT01. http://www.riksdagen.se/sv/Dokument- pdfto Lagar/Ovriga-dokument/Ovrigt-dokument/_sfs- 836 Ibid. 2004-168/ 837 The Children and Parents Code of 1949 , 842http://eur- https://lagen.nu/1949:381 lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L 838 :2004:166:0001:0123:en:PDF https://skl.se/download/18.413f4ad015c773324e5ef 843 http://www.riksdagen.se/sv/dokument- 95e/1497526194251/PM%20-%20EDoMH%20- lagar/dokument/svensk- %20%C3%84ndrade%20%C3%A5ldersbed%C3% forfattningssamling/smittskyddslag-19881472_sfs- B6mningar%20av%20ensamkommande%20barn.p 1988-1472 df 839 Foreigners Act of 2005

137

SWEDEN situation of the patients remain covered by oath of confidentiality taken by healthcare professionals.

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 be tested and to receive treatment.

138

SWITZERLAND

insurance and made this “basic package” SWITZERLAND compulsory across the Swiss confederation. National Health System To facilitate government monitoring of health insurance companies, insurers must Constitutional basis register with the Federal Office of Social Insurance (FOSI) in order to offer the basic The Federal Constitution of the Swiss health insurance package. Moreover, the Confederation, adopted on 18 April 1999, Swiss system being highly decentralised, enshrines the right to health. Article 12 the 26 Swiss cantons are largely responsible establishes that “ persons in need and unable for the provision of healthcare. Insurance to provide for themselves have the right to companies (around 90 across the country) assistance and care, and to the financial operate primarily on a regional basis. means required for a decent standard of living ”.844 Article 41(1)a and b states that, With regard to the funding, there are three “the Confederation and the Cantons shall, components for publicly financed as a complement to personal responsibility healthcare: and private initiative, endeavour to ensure that: (a) every person has access to social Ø mandatory health coverage; security ; (b) every person has access to the Ø direct financing by government for healthcare that they require ”.845 healthcare providers (tax-financed budgets spent by the Confederation, Moreover, Article 117a1, relating to basic cantons and municipalities; the medical care, states that, “within the limits largest portion of this spending is of their respective powers, the given as cantonal subsidies to Confederation and the cantons shall ensure hospitals providing in-patient acute that everyone has access to sufficient and care); high quality basic medical care (…)” .846 Ø social insurance contributions from health-related coverage of accident In addition, Article 118 enshrines the insurance, old-age insurance, protection of health, for which “the disability insurance and military Confederation shall, within the limits of its insurance.849 powers, take measures” .847 Accessing Switzerland healthcare Organisation and funding of Swiss system healthcare system The system is based on the compulsory The Swiss Federal Law on Compulsory health insurance for any person residing in Health Care (LAMal) entered into force on Switzerland for more than three months, as 1 January 1996.848 This law introduced a foreseen in Article 3 (1) LAMal and in managed competition scheme across the relation to Article 1(1) Health Insurance country, with “universal” coverage in basic Ordinance (OAMal) of 27 June 1995 health insurance. Moreover, the LAMal (OAMal/RS 832.102 850 ). Article 6 LAMal expanded the package of services completes these provisions by explaining previously covered by statutory health that the cantons are in charge of making

844 Federal Constitution of the Swiss Confederation https://www.admin.ch/opc/fr/classified- of 1999 (last updated 18 May 2014), compilation/19940073/index.html http://www.admin.ch/ch/e/rs/1/101.en.pdf 849 The Commonwealth Fund, 2015 International 845 Ibid. Profiles of Health Care Systems , January 2016 846 Ibid. 850Health Insurance Ordinance 832.102 847 Ibid. https://www.admin.ch/opc/fr/classified- 848 Law on Compulsory Healthcare (LAMal) - 1994 compilation/19950219/201506010000/832.102.pdf

139

SWITZERLAND sure that this obligation is respected and that insurer will initiate legal proceedings. After “the authority designated by the canton the individual receives an order to pay, s/he automatically affiliates any person, who is has 30 days to pay the entire sum claimed, obliged to take out insurance if that person plus the legal expenses. has not already done so”. While the former Article 64a LAMal The monthly premiums for health insurance provided that insurance funds could are fixed per family member and suspend their services and/or independently of income, depending on the reimbursements if people did not pay, the region and the chosen insurance model. On new Article 64a LAMal (which came into average, compulsory health insurance (with force on 1 January 2012) 854 modified this accident coverage) for an adult over the age provision. Insurance funds no longer have of 26 costs €393 per month, €362 per month the right to suspend healthcare for young adults (18-25 years old) and €90 reimbursements if an individual fails to pay per month for children under the age of 18. his/her premiums. Furthermore, the insured person must pay an annual “franchise” which, by law, varies In this way, the canton assumes 85% of the between € 275851 (CHF300) and € 2,293 debts claimed by the insurance fund. As (CHF2500) for adults (the franchise is free soon as the individual pays all or part of for children) and must contribute up to 10% their debt to the insurance fund, the fund (proportional share) of the cost of the gives 50% of this amount back to the services provided.852 canton. Only if legal proceedings turn out to be impossible or do not result in payment, This proportional share is capped at € 642 and after written notification, can the (CHF700) per adult and € 321 (CHF350) per insurer eventually terminate the health child.853 In other words, in addition to the insurance (Article 9, OAMal).855 monthly premium, an adult who has opted for a € 275 franchise will pay a maximum of A partial reduction or full exemption from €917 (€ 275 + € 642) per year for medical monthly premiums is foreseen in Article 856 treatment. The higher the annual franchise, 65(1) LAMal for people “on low the less the monthly premium will be. incomes”. This is the responsibility of the cantons, which is why the granting of The most destitute people therefore often premium reductions differs from one canton choose this option which creates serious to another. difficulties if they become ill (and can lead to them giving up seeking care), as they Paragraph 1a of this same article also cannot cover the resulting costs (they are indicates that for low and middle-range not refunded until they reach the amount of incomes, premiums for children and young their franchise). adults (18-25-year-old students) are reduced by at least 50%. In the event of non-payment of the monthly compulsory health insurance premiums, the Article 115 of the Swiss Constitution, individual receives a summons giving completed by the Federal Act of 24 June him/her 30 days to pay the premiums due. If 1977 on jurisdiction in terms of assistance 857 the summons remains unanswered, the for persons in need (‘LAS’/RS 851.1 )

851 Exchange rate for June 2017 854http://www.admin.ch/opc/fr/classified- 852https://www.eda.admin.ch/missions/mission-onu- compilation/19940073/index.html#a64a geneve/en/home/manual-regime-privileges-and- 855 Op. cit. note 850 immunities/introduction/manual-insurance/manual- 856 Op. cit. note 848 insurance.html 857 Federal Law on assistance of 1977, 853http://www.guidesocial.ch/fr/fiche/55/%23som_1 http://www.admin.ch/opc/fr/classified- 34251 compilation/19770138/index.html#id-1

140

SWITZERLAND foresees that “people in need are assisted by months or because it is necessary to the canton of their domicile”. This ‘social “reduce or avoid the danger of assistance’ organised by the cantons is serious harm to the physical integrity reserved for people who “cannot take care or state of profound distress of the of themselves sufficiently or in time, by pregnant woman ”); their own means” (Article 2 LAS) .858 Social Ø preventive measures (mammography assistance 859 is granted if a person in need for some women at risk, cannot be looked after by his/her family or gynaecological examinations, cannot claim other legal services to which examinations of new-born and pre- s/he has a right (principle of subsidiarity).860 school children, basic vaccinations for children and elderly people); It includes, notably, prevention measures, Ø rehabilitation measures carried out or personal assistance and material assistance prescribed by a doctor. depending on the individual’s needs. Thus, social assistance ensures basic medical care Dental care is not included in this catalogue, for those concerned, including the coverage except if it is caused by a serious and non- 861 of the compulsory basic health insurance. avoidable disease of the masticatory system, by another serious disease or its The healthcare services covered by the consequences or because it is necessary to compulsory (basic) health insurance are treat a serious disease or its consequences indicated in Articles 25 to 31 LAMal and (Article 31 LAMal).864 Unless they detailed in the Federal Department of the subscribe to additional health insurance Interior (DFI) order of 29 September 1995 cover for dental care, patients with basic regarding compulsory healthcare services in health insurance have to pay for the full cost the event of illness or disease.862 The of dental care, which is very expensive in following services are notably included: Switzerland. Ø examinations, treatments and care dispensed in the form of outpatient Access to healthcare for care at the person’s home, in hospitals migrants or in a medical-social centre by doctors, chiropractors and individuals Asylum seekers and refugees providing services prescribed by a As Switzerland applies a global health doctor; insurance scheme that is obligatory for all Ø antenatal and postnatal care; people residing in Switzerland for longer Ø terminations of pregnancy allowed by than three months, the scheme also includes Article 119 of the Swiss Criminal asylum seekers and refugees.865 Code 863 (i.e. within the first three

858 Ibid. 863Swiss Criminal Code of 1937 , 859 W. Schmid and D. Maravic, “The new CSIAS http://www.admin.ch/opc/fr/classified- standards relative to the obligation to provide care compilation/19370083/index.html#a119 under the terms of family rights”, The fiduciary 864 Op. cit. note 848 Expert , 2009 865 V. Bilger and C. Hollomey, “Policies on Health http://www.trex.ch/custom/trex/pdfarchiv/TREX_2 Care for Undocumented Migrants in Switzerland, 009/Edition_4/Articles_specialises/Walter_Schmid Country Report”, Healthcare in NOWHERELAND __Danie.pdf improving services for undocumented migrants in 860http://www.fr.ch/sasoc/fr/pub/aide_sociale/buts_ the EU, 2011, aide_sociale.htm https://www.unine.ch/files/live/sites/sfm/files/nouv 861 http://csias.ch/ elles%20publications/Booklet- 862 Healthcare Benefits Ordinance of 1995 , Publikation_FINAL_03082011_A5.pdf http://www.admin.ch/opc/fr/classified- compilation/19950275/index.html

141

SWITZERLAND

Thus, asylum seekers and statutory refugees needs of unaccompanied minors, families have to take out compulsory health with children and “particularly vulnerable insurance, as they are “persons domiciled in individuals”. For instance, minor asylum Switzerland within the meaning of Articles seekers would be entitled to schooling from 23-26 of the Swiss Civil Code ”.866 the beginning of their asylum application until they are 16, which is the age at which They can make a claim for premium schooling is no longer compulsory. reductions if they are on a low income.867 They can also benefit from social assistance Pregnant asylum seekers and refugees at the level provided by their canton, as Under the Swiss health system, pregnant foreseen in Articles 80-81 of the Asylum 868 women should have access to antenatal and Act (LAsi). This social assistance covers postnatal care. Cantons are obliged to basic medical care, including compulsory provide accommodation to asylum seekers insurance (especially the amount remaining and refugees, therefore pregnant women after premium reductions and franchises). have immediate access to social assistance According to the Asylum Act, asylum and premium reductions and thus have seekers who receive a negative asylum access to antenatal and postnatal care. decision or a rejection of their application Antenatal and postnatal cares are covered still benefit from ordinary social assistance. by basic health insurances. Thus, pregnant asylum seekers and refugees who are Since 1 February 2014, social assistance is covered by a health insurance do not have automatically withdrawn from individuals to pay for maternal care; this means they do who receive a removal decision with a fixed not pay the franchise nor the 10% departure deadline (Article 82(1) LAsi). proportional share. They also have access to Those who receive a removal decision may pregnancy termination through social only have access to emergency care on workers who help them with the process. request (Article 82(2) LAsi). This barrier to accessing care goes against the rights of Children of asylum seekers and refugees asylum seekers appealing a decision i.e. Children of asylum seekers and children of who are still in the asylum process. refugees have the same access to healthcare as their parents. They have health coverage, A major modification of the Asylum Act which includes vaccination if their parents was put to vote and accepted through a are covered. referendum on 5 June 2016 869 . As of June 2017, the modification still requires Undocumented migrants ordinances to be implemented.870 This reform may shorten the asylum procedure As already mentioned, any person residing and the delay for appeal of rejected asylum in Switzerland must take out health seekers, which would toughen the current insurance within three months of residence asylum legislation. However, it also or birth, including undocumented migrants. includes the obligation for the authorities to Only authorised residents (including provide free legal counselling for all asylum refugees, beneficiaries of subsidiary seekers and to take into account the specific

866 Swiss Civil Code of 1907 , 869https://www.admin.ch/gov/fr/accueil/documentat http://www.admin.ch/opc/fr/classified- ion/votations/20160605/modification-de-la-loi-sur- compilation/19070042/index.html asile.html 867 https://www.ch.ch/en/reductions-health- 870 insurance/ https://www.sem.admin.ch/sem/fr/home/aktuell/ges 868 Asylum Act (LAsi) - 1998 etzgebung/aend_asylg_neustruktur.html https://www.admin.ch/opc/fr/classified- compilation/19995092/index.html

142

SWITZERLAND protection and asylum seekers) benefit from franchise 873 , around €2,300 per year. It social assistance. Others can only exercise means that they have to cover the first their right to “ emergency assistance ” under €2,300 prior to being covered by health the terms of Article 12 of the Swiss insurance. In addition, they must contribute Constitution.871 up to 10% (proportional share) of the cost of outpatient services. Although Article 65(1) LAMal states that destitute undocumented migrants can Undocumented migrants also have a right to benefit from the same premium reductions “emergency assistance” under the terms of as destitute nationals, this is not possible in Article 12 of the Swiss Constitution 874 all cantons and very difficult to obtain. which foresees that “ Persons in need and Indeed, most cantons ask for proof of unable to provide for themselves have the income tax in order to grant access to right to assistance and care, and to the premium reductions. Furthermore, in financial means required for a decent practice, people who ask this provision face standard of living ”. These aid and serious risk of refusal if they ask for a assistance provisions are free of charge, residence permit. however the assistance is granted for a short period. In addition, in practice, people Thus, because they do not work legally, requiring the emergency assistance face they do not pay taxes, so they cannot have serious risks of expulsion (unless they are access to premium reductions. The canton unfit for travel). of Neuchâtel asks for proof of domicile, which is in practice very difficult to obtain The assistance includes, as a minimum, for someone who is hosted by friends or “accommodation in simple housing (often families and cannot therefore be registered collective), the supply of food products and with the residents’ registration office ( le hygiene items, emergency medical and service de contrôle des habitants) . dental care, as well as other vital services ”. Undocumented migrants are not likely to Significant differences between cantons take the risk of being thrown out of their exist regarding the access procedures and homes to get this proof. Indeed, according services covered by this emergency to Article 116 of the law on foreign assistance system and some cantons are nationals 872 , individuals who host quite restrictive.875 In any case, this undocumented migrants can be punished by assistance must be specifically requested by a fine or imprisonment of up to five years. the potential beneficiaries and does not always include affiliation to a health Other cantons accept a sworn statement and insurance fund. in this case, undocumented migrants can easily gain access to premium reductions. In practice, undocumented migrants face many difficulties in respecting the Therefore, in practice, undocumented obligation to take out health insurance migrants try to obtain health coverage, because of lack of financial means, lack of however the cost is a serious obstacle. They knowledge of the system and fear of being spend most of their wages on private reported. Insurers must maintain insurance contributions. They opt for the confidentiality with regard to third cheapest contributions of around €300. Th is choice involves having the highest

871 Op. cit. note 844 873 The franchise or deductible is the amount, which 872Federal Act on Foreign Nationals of 2005 , has to be paid by the patient before the insurance https://www.admin.ch/opc/fr/classified- starts paying. compilation/20020232/index.html 874 Op. cit. note 844 875 http://www.guidesocial.ch/fr/fiche/46/

143

SWITZERLAND parties 876 but in the event of the non- premium. However, in practice, access to payment of premiums, the insurer initiates a premium reductions is very complicated. debt-collecting procedure (Article 64a LAMal, see above), which represents an Either their parents can afford private health additional risk of being discovered (see coverage for them (the contributions are Article 84a(4) LAMal). cheaper than for adults, around €90 per month), so children have access to Undocumented pregnant women vaccinations; or they cannot pay Every pregnant woman, and undocumented contributions so they have to pay all pregnant women who can only afford the doctor’s fees. cheapest health insurance, is covered for Most undocumented parents succeed in termination of pregnancy, antenatal care, insuring their children. Indeed, children’s delivery and postnatal care. They do not coverage is compulsory if their parents want have to pay for maternal care; this means to register them for school. they do not pay the franchise nor the 10% proportional share.877 EU citizens Regarding pregnant women without health EU citizens, like anyone who resides in coverage, they have to pay themselves. For Switzerland, are obliged to take out health instance, antenatal, delivery and postnatal insurance within three months of their care cost around €5,500 for women without arrival in Switzerland. Destitute EU citizens health coverage. should have the same access to premium reductions as any resident. However, mostly, non-governmental organisations work closely with However, since the European crisis, many practitioners in public hospitals who EU citizens have settled in Switzerland to provide free healthcare to undocumented find a job. Since 2015, those looking for a pregnant women. In La Chaux-de-Fonds, job or who lost their job after less than a MdM CH guides them to public hospitals, year in Switzerland are not entitled to social which agree to provide healthcare free of benefits. It was reported by the medias that charge. in the Vaud canton, regional social centres, which have responsibility for assistance In case of emergency, practitioners have to often reported those who ask for help provide healthcare anyway, without asking shortly after their arrival to the Cantonal whether patients have health coverage. Office for Population and Migrants. MdM CH teams report that many undocumented pregnant women who Pregnant EU citizens cannot pay for health services leave the Pregnant EU citizens are required to pay hospital without having paid and without a healthcare services related to the pregnancy bill for reimbursement. and delivery, and must ask for a refund in their country of origin. If they do not pay, Children of undocumented migrants they face lawsuits, which can be an obstacle Children of undocumented migrants have to obtaining a work permit in Switzerland. the same access as their parents. In principle, they may have access to premium reductions, which cover the whole

876Federal Law on the general section of social 877http://www.informaternite.ch/en_attendant_bebe/ insurance of 2000, Article 33, 84, 92,c l_assurance_maladie/prestations_de_l_assurance_d http://www.admin.ch/opc/fr/classified- e_base_en_cas_de_grossesse compilation/20002163/index.html#a33

144

SWITZERLAND

Termination of pregnancy 2015, the United Nations Committee on the Rights of the Child addressed a number of According to Article 119 of the Criminal recommendations to Switzerland, one of Code 878 , termination of pregnancy is which relates to the rights of possible up to 12 weeks following the unaccompanied minors.885 Indeed, the beginning of a woman ’s last period. After United Nations experts are concerned that 12 weeks, termination is only possible if a certain cantons may assign representatives doctor considers that there is physical who do not have any experience or training danger for the pregnant woman. and therefore are not able to guarantee the Terminations of pregnancy are included in best interests of the minor. Accordingly, the the basic health insurance services and are United Nations recommends that therefore entirely reimbursed for insured representatives be properly trained and that persons (Article 30 LAMal) 879 . unaccompanied minors be excluded from the accelerated asylum procedure.886 Unaccompanied minors In Switzerland, apart from the difference in In certain cantons, unaccompanied minors the cost of compulsory insurance and the should be taken into establishments, which obligation to take into account the best assist them and ensure their protection. interests of the child by the authorities, no Those who seek asylum have the same specific legal provision exists regarding access to healthcare as children of asylum access to healthcare for unaccompanied seekers. minors compared with children who accompany their family. According to state regulations, the right to seek asylum is guaranteed for all unaccompanied minors in Switzerland.880 Protection of seriously ill This right is strictly personal 881 , therefore foreign nationals whether unaccompanied minors reach the People in situations considered of “serious age of discernment, they can make an cases of personal hardship ” can obtain a application for asylum personally, or they humanitarian residence permit (B permit). will have to be represented by a Indeed, people who reside in Switzerland “trustworthy person” .882 The canton without a residence permit can request the authorities assign these persons.883 application of Article 30(1)b of the Federal Act on Foreign Nationals (LETr) of 16 It is important to stress that even if an December 2005.887 The definition of unaccompanied minor reaches the age of “serious cases of personal hardship ” discernment and is able to fill out an asylum depends on the examination of several application on their own, they will have to criteria referred to in Article 31 of the be assisted by a “trustworthy person” Ordinance of 24 October 2007 related to the representative during the procedure.884 Therefore, the issue of this representative is crucial regarding asylum requests by unaccompanied minors. On 4 February

878 Op. cit. note 863 884http://www.admin.ch/opc/fr/classified- 879 Op. cit. note 848 compilation/19995092/index.html#a82a 880https://www.osar.ch/droit-dasile/procedure- 885http://www.asile.ch/vivre- dasile/mineurs.html ensemble/2015/02/07/odae-romand-lonu-sinquiete- 881http://www.sem.admin.ch/dam/data/sem/asyl/ver des-conditions-daccueil-des-enfants-migrants-en- fahren/hb/c/hb-c10-f.pdf suisse/ 882 Ibid. 886 Ibid. 883 Ibid. 887 Federal Act on Foreign Nationals

145

SWITZERLAND admission, residency and exercise of a In term of access to screening and treatment lucrative activity.888 of infectious diseases, there are many differences depending on the canton. A serious health condition for which no treatment in the country of origin exists is In Neuchâtel, people may have access to not sufficient in itself as a criterion, as the anonymous screening. For HIV screening, Federal Administrative Court young people and students have to pay €27 systematically examines the person’s level (CHF30) and other people have to pay €55 of integration into Swiss society, respect for (CHF60).891 the law, family situation (notably the presence of children), financial situation For undocumented migrants who are not and duration of stay in Switzerland covered by the basic compulsory health (preferably more than five years). In insurance, treatments for HIV and hepatitis practice, obtaining this permit remains C are unaffordable. For instance, triple exceptional. There is no possibility to therapy treatment costs around €1,500 per appeal the Court’s decis ion. month. This price does not include analysis. Some NGOs decide to pay the monthly Provisional admission (F permit) can also contributions to the basic health insurance be granted to people for whom the in a limited way to people with low execution of an expulsion order is not incomes, especially undocumented possible, legal or reasonably enforceable migrants, in order for them to get health (Article 83 al. 1 LETr). Article 83(4) of the coverage and thus free treatment for a LETr foresees that “enforcement may be period of one year. However, this scheme is unreasonable for foreign nationals if they not enough to cover all undocumented are specifically endangered by situations migrants. such as war, civil war, general violence and medical emergency in their native country or country of origin ”. The Federal Administrative Court jurisprudence establishes that an expulsion is unenforceable if the person “can [no longer] receive adequate care guaranteeing the minimum conditions of existence” .889

Treatment of infectious diseases The basic compulsory health insurance covers the costs linked to HIV screening and HIV treatment.890 People need a medical prescription from a doctor.

888 Ordinance on admission, residence and gainful 890 Order of the Interior Federal Department (DFI) employment of 2007 , of 1995 , Article 12d http://www.admin.ch/opc/fr/classified- 891 http://www.info-sida.ch/ (prices from December compilation/20070993/index.html#a31 2016) 889 (art. 6.2) https://entscheide.weblaw.ch/cache.php?link=23- 07-2013-E-2021-2012

146

TURKEY

Security Institution (SSI – SGK Sosyal TURKEY Güvenlik Kurumu).

National Health System Organisation and funding of Turkish healthcare system Constitutional basis Health services are financed through the Article 56 of the Constitution of Turkey of health insurance scheme, the GHIS, which 1982, amended in 2010, states, “ that it is the covers the majority of the population, and duty of the state (…) to ensure that everyone services are provided by both public and leads their lives in conditions of physical private sector facilities.897 The SSI is and mental health and to secure funded through payments by employers and cooperation in terms of human and material employees and government contributions in resources through the economy and cases of budget deficit.898 increased productivity, the state shall regulate the central planning and The Ministry of Health is the main actor in 899 functioning of the health services ”892 . planning and supervising health services. Article 60 explains that “everyone has the 893 The private sector has gained power over right to social security” . recent years, particularly after arrangements Towards universal health coverage paved the way for private provision of services to the SSI. Turkey finances Since 2003, Turkey has been implementing healthcare services from multiple its Health Transformation Programme sources 900 . Social health insurance (HTP) with the goal of realising universal contributions take the lead, followed by health coverage through the General Health government sources, out-of-pocket Insurance System (GHIS).894 payments and other private sources.901 In 2006, the parliament ratified the Law on The SSI finances the cost of healthcare Social Insurance and Universal Health services, through the premiums collected Insurance (Law No. 5510 – GHI Law).895 from universal insurance holders. With this law, the three separate schemes (Bağ -Kur, SSK and GERF 896 ) were brought The universal health insurance premium is under a single system. 12.5% of income. Of this premium, 5% is the insurance holder’s share deducted from At present, both social security and health the gross salary and 7.5% is the employer’s insurance (General Security Service) share.902 procedures are carried out by the Social

892 Constitution of the Republic of Turkey of 1982 http://turkishlaborlaw.com/images/turkish-social- http://www.ilo.org/wcmsp5/groups/public/--- security-law/social-security-law-5510.pdf ed_protect/---protrav/--- 896 M. Tatar et al., “Turkey: Health system review”, ilo_aids/documents/legaldocument/wcms_127495.p Health Systems in Transition , Vol. 13 No. 6, 2011, df http://www.euro.who.int/__data/assets/pdf_file/000 893 Ibid. 6/158883/e96441.pdf 894R. Hunter, “TURKEY’S HEALTH CARE 897 Ibid. REFORM: THE 2023 CHALLENGE”, TURKISH 898 Ibid. POLICY Quarterly , Vol. 12 No. 2, 2013, 899 Ibid. http://turkishpolicy.com/pdf/vol_12-no_2- 900 Ibid. hunter.pdf 901 Ibid. 895 Social Insurance and Universal Health Insurance 902http://www.invest.gov.tr/en- Law of 2006, us/investmentguide/investorsguide/employeesandso cialsecurity/pages/turkishsocialsecuritysystem.aspx

147

TURKEY

Accessing Turkey healthcare system covered by the Bağ -Kur) and those who were not previously covered by any other In theory, as introduced by the GHI Law, scheme must have paid at least 60 days of the GHIS provides individuals residing in contributions.907 the country with comprehensive, fair and equitable access to healthcare services, In addition, there has been an extension of regardless of their economic situation. the coverage period for former members of the SSK and Ba ğ-Kur, as well as for active The system is available to foreign residents civil servants, when they cancel their paying social security contributions. With membership for any reason.908 Previously, the Social Insurance and General Health they were covered for up to 10 days after Insurance, everybody residing in the cancellation; now both they and their country legally is included in the health dependants can benefit from the GHIS for system. In addition to this, the new system 90 days, provided they have paid 90 days of extended free health coverage for children contributions in the last year.909 below 18.903 With the new system, all children get free health services even if their In accordance with Article 60 of the GHI parents have outstanding debts on their Law 910 , refugees do not pay insurance insurance payments. premiums, they are not deemed to be insurance holders, and the same applies to Article 60 of the GHI Law 904 (as amended citizens with very low incomes. The latter by Article 38 of 2008/5754 Law and Article are defined as citizens whose domestic 123 of 2013/6458) states that the following income per capita is less than one third of population groups are covered by the GHIS: the minimum wage, determined using the Ø former members of the SSK, Bağ -Kur testing methods and data as stipulated by the and GERF, active civil servants and SSI, and taking into account their expenses, Green Card holders, as well as their movable and immovable property and their dependants; rights arising from these. The minimum Ø specific groups receiving a monthly wage is TRY1777.5 (€481.37) as of 1 911 pension from the government (such as January 2017 , so destitute citizens have war veterans); less than approximately € 160.46 per month. Ø people recognised as stateless who have applied for or been granted Services covered by the SSI:

protection; Ø protective healthcare services for Ø people in receipt of unemployment individuals without considering benefit, etc. 905 . whether they are sick or not and for preventing abusing substances The GHI Law also determined the rules of harmful to human health entitlement. Accordingly, in order to benefit Ø inpatient and ambulatory healthcare from the GHIS, an individual must have services provided in case paid a minimum of 30 days of general individuals are sick health insurance contributions in the last year.906 Self-employed people (formerly

903O. Karadeniz, “Extension of Health Services 906 Op. cit. note 896 Coverage for Needy in Turkey: From Social 907 Op. cit. note 896 Assistance to General Health Insurance”, Journal of 908 Op. cit. note 896 Social Security , 2012, 909 Op. cit. note 896 http://www.acarindex.com/dosyalar/makale/acarind 910 Op. cit. note 895 ex-1423911988.pdf 911http://www.fedee.com/pay-job- 904 Op. cit. note 895 evaluation/minimum-wage-rates/ 905 Op. cit. note 896

148

TURKEY

Ø inpatient and ambulatory healthcare (with the exception of drug co-payments) provided due to work accidents, when they needed care. occupational disease and maternity Ø Oral and dental healthcare services Since 2012, the Green Card system has and odontotherapy for the become part of the GHIS, joining the SSI. individuals under the age of 18 Destitute citizens in Turkey can access Ø Assisted reproductive methods 912 Turkey’s healthcare system, according to The SSI provides preventive care free of the same criteria as under the previous charge for every citizen, even those without Green Card scheme. health coverage. Regarding medicines, a co-payment of 20% of the total amount of Access to healthcare for the prescription is required plus an migrants additional TRY3 (€0.81 913 ) per prescription up to thre e medicines, and TRY1 (€0.27) for Authorised residents 914 each extra medicine. It is not compulsory for foreign nationals to There is no co-payment required for 915 join the SSI health scheme. Those wishing medicines at the hospital. to join may do so after one year of residence in Turkey with a residence permit. During Co-payments for outpatient care have been this year, health services are not free of introduced for all those covered by the SSI charge and people have to pay out of pocket who present to hospitals without a referral for any services. from a primary care physician (GP); patients pay €5 to public hospitals. In practice, in Istanbul, foreign nationals However, inpatient services are fully can have access to inpatient services in covered.916 Visits to primary care facilities public hospitals by payment of the fee for do not require a co-payment.917 people without health insurance (“tourist fee”). A medical consultation w ith a GP Green Card scheme costs around €40. In 1992, the government introduced a Green Card scheme for destitute households with However, in accordance with Circular No. incomes below the national minimum and 2010/16 issued by the Prime Minister, for families on social assistance, financed emergency healthcare services for all from general budget revenues.918 The Green individuals are supposed to be free without Card scheme provided a special card giving any distinction between private or public 919 free access to outpatient and inpatient care, healthcare institutions. covering inpatient medication expenses, but excluding the cost of outpatient drugs. Green Card holders, being poor people, did not directly contribute to the healthcare system, but received benefits free of charge

912 918R. Atun, et al., “Universal health coverage in http://www.sgk.gov.tr/wps/portal/sgk/en/detail/univ Turkey: enhancement of equity”, the Lancet , Vol ersal_health_ins 382, No 9886, 2013. 913 Exchange rate of January 2017 919Adnan Kisa, and Mustafa Z. Younis “Financing 914http://www.asylumineurope.org/sites/default/files Health Care For The Poor In Turkey: Is A /report-download/aida_tr_update.i.pdf Temporary Solution Becoming A Permanent 915 Scheme?” Public Health Rep. 2006 Nov -Dec; http://whocc.goeg.at/Literaturliste/Dokumente/Cou 121(6): 764 –768 ntryInformationPosters/Turkey2015.pdf https://www.ncbi.nlm.nih.gov/pmc/articles/PMC17 916 Op. cit. note 896 81919/ 917 Op. cit. note 896

149

TURKEY

Asylum seekers and refugees subsidiary protection 926 , pursuant to the LFIP. Both of these types of international Turkey was one of the original signatories protection are temporary. to the 1951 Refugee Convention.920 However, it adopted the Convention with a Refugees from Syria (i.e. Syrian nationals “geographical limitation” .921 and stateless Palestinians originating from Syria) benefit from a specific “temp orary This means that only refugees coming from protection” regime. This separate regime countries that are members of the Council acquired a legal basis in 2014 with the of Europe are offered the prospect of long- Temporary Protection Regulation (TPR) 927 , term integration in Turkey. For those based on Article 91 of the LFIP. The coming from outside this zone, Turkey temporary protection status is not specific to offers limited protection in the form of any nationality and could be applied to any temporary asylum.922 mass-arrival situation, upon decision of the 928 The legal framework for asylum in Turkey Turkish Council of Ministers. was shaped by the Law on Foreigners and Pursuant to article 89-3a of the Law on International Protection (LFIP) 923 , which Foreigners and International Protection 929 , was passed by the Turkish parliament in “international protection applicants and April 2013 and came into force in April status holders who do not have any health 2014. The LFIP is a milestone in Turkish insurance coverage and do not have the asylum law, as it overhauled the entire financial means to pay for healthcare Turkish asylum system and incorporated services” are to be covered by the General into Turkish law some procedural Health Insurance scheme under Turkey’s safeguards resembling EU migration law. public social security scheme. It is important to bear in mind that in Thus, they can access for free the same Turkish regulations the term “ refugee ” is healthcare services as Turkish nationals defined differently from the established covered by the national insurance scheme. definition based on international law. Indeed, only those people applying for Applicants and holders of the international international protection “as a result of protection status are supposed to prove their events occurring in European countries” lack of resources. It is reported that in can obtain a refugee status in line with the practice, such means determination is not Refugee Convention.924 always carried out and applicants are Individuals coming from a “non -European country of origin” may only apply for a conditional refugee status 925 or for

920 Convention relating to the Status of Refugees - http://www.refworld.org/cgi- 1951 bin/texis/vtx/rwmain?docid=5167fbb20 http://www.ohchr.org/EN/ProfessionalInterest/Page 924Law on Foreigners and International Protection, s/StatusOfRefugees.aspx article 61 921Asylum Information Database, Country report : 925 Law on Foreigners and International Protection, Turkey , December 2015, p. 15 article 62 http://www.asylumineurope.org/sites/default/files/r 926 Law on Foreigners and International Protection, eport-download/aida_tr_update.i.pdf article 63 922NOAS, Seeking asylum in Turkey, a critical 927Temporary Protection Regulation of 22 October review of Turkey’s asylum laws and practices, 2016 2013 http://www.asylumineurope.org/sites/default/files/r http://www.refworld.org/docid/56572fd74.html esources/noas-rapport-tyrkia-april-2016_0.pdf 928 NOAS, Seeking asylum in Turkey, 2016, p. 15 923Law 6458 on Foreigners and international 929 Op. cit. note 923 Protection (LFIP) – 2013

150

TURKEY usually extended free healthcare primary healthcare institutions. They can coverage.930 also access screening and immunisation for communicable diseases, specialised Another prerequisite to obtain this coverage services for infants, children and teenagers is to have a Foreigners Identification as well as maternal and reproductive health Number, assigned by Provincial DGMM services.934 Directorates. Yet, the delays to obtain one are very long, leaving applicants for Generally, they are entitled to access international protection without health healthcare services only in the province coverage.931 they are registered in. Furthermore, applicants processed under Victims of psychological, physical or the accelerated procedure cannot have sexual violence are entitled to appropriate access to this benefit since they are not care, according to article 67-2 of the LFIP. issued the International Protection Applicant Identification Document, thus, As for medication cost, beneficiaries of they are only entitled to “urgent and basic “international protection” and of healthcare services” .932 “temporary protection” have to contribute 20% of the total amount of the prescribed These conditions do not apply for medication costs.935 In addition, “Temporary protection” beneficiaries. beneficiaries are expected to pay TRY3 Pursuant to article 27 of the Temporary (€ 0.81) per medication item up to three Protection Regulation 933 , all registered items, and TRY1 (€ 0.27) for each item if “temporary protection” beneficiaries, more than three items were prescribed. whether residing in the temporary accommodation centres or outside the In practice, inconsistency in the practices of temporary accommodation centres, are pharmacies is reported. Some pharmacies, covered under Turkey’s general health including in Istanbul, are unwilling to insurance scheme. As such, they have the provide medication for “temporary right to access free of charge public protection” beneficia ries because of healthcare services. ongoing delays in reimbursements. In other provinces, pharmacies do not require the Individuals eligible for “temporary 20% co-payment from “temporary protection” who have not yet completed protection” beneficiaries .936 their registration only have access to emergency medical services and health The Health Implementation Directive services pertaining to communicable (SUT) sets which health issues entitle diseases as delivered by primary health care beneficiaries of “temporary pro tection” to institutions. access secondary and tertiary healthcare services. For the treatment of health issues Once they are covered by the general health which are not included in the SUT or for insurance scheme, international protection treatment expenses related to health issues applicants and holders, and temporary that are covered by the SUT, but exceed the protection beneficiaries are entitled to cost ceiling as set by the SUT, beneficiaries spontaneously access initial diagnosis, of temporary protection may have to treatment and rehabilitation services at provide for additional costs. Free healthcare

930 Asylum Information Database, Country report : 934Asylum Information Database, Country report : Turkey , December 2015, p. 87 Turkey , December 2015, p. 88 931 Asylum Information Database, Country report : 935 Asylum Information Database, Country report : Turkey , December 2015, p. 73 Turkey , December 2015, p. 131 932 Ibid. 936 Ibid. 933 Op. cit. note 927

151

TURKEY coverage for registered “temporary Doctors of the World – Médecins du Monde protection” beneficiaries also extends to (MdM)’s partner in Turkey, ASEM has mental health services provided by public observed in Istanbul that undocumented healthcare institutions. migrants may often be refused treatment or reported to the police by medical and So far, the transition to the new asylum administrative providers when they present scheme has been characterised by a lag on at the emergency departments of public implementation of the new legal framework hospitals.939 and lack of transparency, which results in inconsistencies affecting access to health According to ASEM, in 2014, organisations care. For instance, although the LFIP supporting migrants condemned the arrests required that a separate regulation be issued by the police of several foreign men who to determine specific aspects of its were hospitalised and then taken and implementation, two unpublished (i.e. not interned in the Kumkapi detention centre. publicly available) circulars have instead This phenomenon has been observed since been shaping the practice until the adoption at least 2010.940 In most cases, these arrests of the implementing regulation on 17 March break the continuity of care and also 2016937 , over a year and a half after the demonstrate the cooperation which exists adoption of the LFIP. between the police and hospital staff.941

Undocumented migrants In contrast, other public hospitals accept undocumented migrants for treatment. For a Undocumented migrants do not have access medical consultation with a GP, they have to healthcare through the GHIS. Since the to pay around €40 ( tourist fee), eight times circular of 2 November 2011 came into more than individuals with health coverage force on 1 January 2012, the government do. In practice, undocumented migrants has enforced a “tourist fee” of around €50 have to rely on organisations such as ASEM for an emergency consultation in public to act as mediators in their access to public hospitals.938 In practice, these prices are hospitals. applicable to undocumented migrants who require care. Undocumented pregnant women Moreover, the amount charged for In Istanbul, undocumented pregnant women specialised care for a person considered as often do not have access to antenatal and a tourist is four times that for non-tourists. postnatal care. ASEM generally sends pregnant women to the Saint-Georges In addition, the healthcare system reform in Hospital, with which they have an Turkey that has been implemented since agreement, so they can have access to 2003 made the primary healthcare centres, antenatal care (this agreement includes four accessible only to individuals with health consultations). coverage. Therefore, undocumented migrants have to go to expensive private Otherwise, pregnant women have to pay clinics to meet a GP or to vaccinate their out-of-pocket hospital fees. For example, a children. delivery by caesarean section costs around €3,500 and a vaginal delivery costs around Public hospitals are obliged to treat everyone in case of emergency. However,

937 Regulation on the Implementation of the Law on 938 M. Blézat and J. Burtin, « Soigner le mal par le Foreigners and International Protection – 2016 rien », Plein droit , juin 2012, No 93. http://www.resmigazete.gov.tr/eskiler/2016/03/201 939 Ibid. 60317-11.htm 940 Ibid. 941 Ibid.

152

TURKEY

TRY1150 (€287) .942 Sometimes, hospitals Prior to the Law on Foreigners and are willing to accept payment by International Protection adopted in 2013, instalments and sometimes they call the there were no specific legal provisions with police who take the woman and her new- regard to the detention of minors. The 2006 born into custody. Ministry of Interior “implementation directive” (Security Circular No.57), Pregnant women in Istanbul do not have defining asylum procedures under Turkey’s access to pregnancy termination. ASEM 1994 Asylum Regulation, stated that sends them to a private clinic in Kumkapi temporary asylum applications for which charges between €160 and €180 until unaccompanied minors were to be fast- four weeks of pregnancy. The price tracked so that minors could be transferred increases the closer the termination is to the to shelters of the State Child Protection 943 end of the legal period of ten weeks. Agency.946 Children of undocumented migrants However, the circular recommends the use The minor children of undocumented of medical tests for determining the age of migrants also have no access to healthcare. the minors if they do not have documentary They may have access to vaccination at a proof of their age, or if the police have primary healthcare centre but these centres doubts about the age stated in such usually require the child to be registered documentation.947 It specifically allows with the authorities. Each vaccine costs minors to be held in reception centres. Until around € 18, added to the medical the results of these tests are issued they are consultation, which costs around €40. held with adults and people who may have been accused of and convicted of crimes.948 Unaccompanied minors 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 unaccompanied recommended by international standards.949 minors. Those who apply for international Indeed, the 1997 UNHCR “Guidelines on protection and who are waiting for the result policies and procedures in dealing with of their application or who have been unaccompanied children seeking asylum ” accepted as refugees should receive state that, when scientific procedures are protection from the state and should have used to determine the age of the child, access to healthcare. Those who receive a margins of error should be applied.950 In decision and have their application refused addition, a policy was adopted by the 2005 944 may be detained and are sometimes UNHCR “ Procedural standards for refugee 945 detained in a manner akin to kidnapping. status determination under UNHCR’s

942 Conversion rate applicable on July 2017 945https://www.amnesty.org/en/documents/eur44/30 943Abortion in Turkey is legal until the 10th week 22/2015/en/ after the conception, although that can be extended 946 Global Detention Project, Immigration Detention to the 20th week if the pregnancy threatens the in Turkey, April 2014, woman's mental and/or physical health, or if the https://www.globaldetentionproject.org/countries/e conception occurred through rape. urope/turkey 944 “During his visit, the Special Rapporteur on the 947Refugee Advocacy & Support Program, Human Rights of Migrants expressed concern about Unwelcome Guests: The Detention of Refugees in the situation of children at both the Kumkapi and Turkey’s “Foreigners’ Guesthouses , November Edirne removal centres. Boys over the age of 12 2007, apprehended with their mothers were automatically https://refuge.journals.yorku.ca/index.php/refuge/ar separated from their mothers and placed in ticle/viewFile/30609/28119 orphanages (SRHRM 2012)” 948 Ibid. http://www.globaldetentionproject.org/countries/eur 949 Op. cit. note 947 ope/turkey/introduction.html 950 Op. cit. note 947

153

TURKEY mandate” , which states that age assessment interests as well as reasons of public order should be resolved in the favour of the and security, in the absence of the child.951 possibility to obtain one of the other types of residence permits due to their situation The 2013 law provides that the best interest that precludes granting a residence permit; of children shall be respected. However, it f) in extraordinary circumstances”. also states that families and unaccompanied children can be detained for removal In these cases, seriously ill foreign nationals purposes but that they should be given can obtain a humanitarian residence permit separate accommodation arrangements at and not be expelled to their country of removal centres and that children should origin or to their country of former usual have access to education (Article 59-1-ç- residence. d).952 Prevention and treatment of The law states that unaccompanied minors who apply for international protection are infectious diseases not to be detained.953 Those aged under 16 The treatment of infectious diseases is will be placed in government-run shelters, covered by the guarantee package of the while those over 16 can be placed in GHIS. In medical examinations, STIs such “reception and accommodation centres as HIV/AIDS and syphilis, as well as provided that favourable conditions are tuberculosis are checked free of charge. ensured ” (Article 66) .954 Tuberculosis is also checked during employment recruitment processes and for Protection of seriously ill other people who may have contact with foreign nationals infected people (also free of charge). Law no. 6458 on Foreigners and Turkish citizens, authorised residents, International Protection of April 2013 955 asylum seekers and refugees with health makes provision for a humanitarian coverage have free access to screening and residence permit in specific cases. treatment for hepatitis B and tuberculosis. Local public and family health centres Article 46 of the law states that, “under the deliver preventive health services for following cases, upon approval of the refugees. Immunisation of preschool Ministry, a humanitarian residence permit children is the leading focus among these with a maximum duration of one year at a services. time may be granted and renewed by the governorates without seeking the Turkish citizens without health coverage conditions for other types of residence only have access to free screening and permits: a) where the best interest of the treatment for tuberculosis. Regarding HIV, child is of concern; b) where, everyone, even individual with health notwithstanding a removal decision or ban coverage, has to pay for his/her treatment, on entering Turkey, foreign nationals which is very expensive. cannot be removed from Turkey or their departure from Turkey is not reasonable or Undocumented migrants do not have access possible; [… ] e) in cases when foreign to treatment. nationals should be allowed to enter into and stay in Turkey, due to emergency or in view of the protection of the national

951 Op. cit. note 947 954 Op. cit. note 946 952 Op. cit. note 946 955 Op. cit. note 938 953 Op. cit. note 946

154

UNITED KINGDOM

The Health Act 2009 established the NHS UNITED KINGDOM Constitution 956 , which formally brings together the purpose and principles of the National Health System NHS in England, its values, as they have been developed by patients, public and Organisation and funding of British staff, and the rights, pledges and healthcare system responsibilities of patients, the public and 957 In the United Kingdom, the National Health staff . Scotland, Northern Ireland and Service Act of 1946 and subsequent Wales have also agreed a high-level legislation, established a comprehensive statement declaring the principles of the public health service. The NHS was finally NHS across the UK, even though services introduced two years later. It was born out may be provided differently in the four of a long-held ideal that quality healthcare countries, reflecting their different health 958 should be available to all nationals and needs and situations. residents in the UK and free at the point of The NHS is intended to provide universal use. The NHS is a residence-based system, health coverage to the population in the UK. unlike many other countries, which have All “ ordinary residents ” in the UK are insurance-based healthcare systems. automatically entitled to healthcare that is This health system is known as a largely free at the point of use through the 959 Beveridgean system, financed by general NHS , except for certain minor charges. taxation, which ensures that each person People from EU countries are also entitled should be protected from cradle to grave. to care, free at the point of delivery, if they The NHS is managed separately in England, have a European Health Insurance Card Northern Ireland, Scotland and Wales. (EHIC). People who are not ordinarily Some differences have emerged between resident in the UK, such as short-term these systems in recent years but they visitors or undocumented migrants, are only remain similar in most respects and entitled to limited free secondary care in continue to be described as a unified emergency departments and for certain system. infectious diseases, unless they fit into one Despite numerous political and of the categories of people who are exempt organisational changes, the NHS remains to from treatment charges. date a service available “universally”, that Since April 2013, in England, all GP cares for people on the basis of need and not practices belong to a Clinical ability to pay, and which is funded by taxes Commissioning Group (CCG) 960 which and national insurance contributions. With commissions most health services for the the exception of charges for some population in its area, including: planned prescriptions and services, the NHS remains hospital care; rehabilitative care; urgent and free at the point of use. This principle emergency care; most community health applies throughout the UK but decisions about specific charges may differ in the different countries of the UK.

956 The NHS Constitution for England of 27 July http://www.ncbi.nlm.nih.gov/pmc/articles/PMC340 2015, 5352/pdf/13167_2010_Article_50.pdf https://www.gov.uk/government/uploads/system/up 958 Ibid. loads/attachment_data/file/480482/NHS_Constituti 959 The Commonwealth Fund, 2015 International on_WEB.pdf Profiles of Health Care Systems , January 2016 957 K. Grosios et al., “Overview of healthcare in the 960http://www.patient.co.uk/doctor/clinical- UK”, EPMA Journal , 2010, commissioning-groups-ccgs

155

UNITED KINGDOM services; maternity services; and mental higher education. The House of Lords health and learning disability services.961 defined ordinary residence as “ a man’s abode in a particular place or country The concept of ordinary residence which he has adopted voluntarily and for The NHS (Amendment) Act 1949 created settled purposes as part of the regular order powers – now contained in Section 175 of of his life for the time being, whether of 965 the 2006 NHS Act – to charge people in the short or of long duration ”. UK w ho are not “ordinarily resident” for The only caveat in the context of access to health services. The powers were first used NHS secondary care is that the person must in 1989 962 to make Regulations in relation be in the UK lawfully, and have the right to to NHS hospital treatment, now be there, but s/he does not need to have the consolidated as the NHS (Charges to right to reside permanently. “Tempor ary Overseas Visitors) Regulations 2015.963 admission” (a form of entry to the UK Since 1989, only those “ordinarily resident” granted pending an immigration decision, in the UK are entitled to free NHS as an alternative to detention for people secondary care (i.e. hospital treatment), liable to detention and removal) does not 966 others will have to pay for them, unless they amount to residence. Ordinary residence fall under an exemption category. Nobody should not be confused with permanent is excluded from primary care (i.e. GP residence, usual residence or other phrases 967 treatment). From 23 October 2017, charges describing residence. will apply to all NHS secondary and tertiary In May 2014, the government published a care provided outside hospitals as well, new Immigration Act 2014 968 , which unless an exemption applies.964 included provisions regarding entitlement The concept of ordinary residence appears to National Health Service treatment that in many areas of law, but until recently, it came into force in April 2015. had not been defined in legislation. Instead, According to the Government 969 , the Act it took its meaning from case law and was intended to: introduce changes to the meant, broadly, living in the UK on a lawful removals and appeals system, making it and properly settled basis for the time being. easier and quicker to remove “ illegal The leading case in which the term was immigrants” from the UK 970 ; end the defined concerned entitlement to grants for

961Guide to the Healthcare System in England http://www.refworld.org/docid/49d1fca62.html Including the Statement of NHS Accountability for 967Department of Health, Internal review of the England, May 2013, overseas visitor charging system - Part 2 http://www.gov.uk/government/uploads/system/upl Analysis of the overseas visitor charging system , oads/attachment_data/file/194002/9421-2900878- http://fullfact.org/sites/fullfact.org/files/782677R% TSO-NHS_Guide_to_Healthcare_WEB.PDF 20Chap%202%20of%20Review%20pages%201- 962NHS (Charges to Overseas Visitors) Regulations 52.pdf 1989/306: 968Immigration Act of 2014 - Summary of Provisions , http://www.legislation.gov.uk/uksi/1989/306/regula https://www.jcwi.org.uk/sites/jcwi/files/Immigratio tion/4/made n%20Act%202014%20Summary%20Provisions.pd 963NHS (Charges to Overseas Visitors) Regulations f 2015/238: 969Race Equality Foundation, Access to services: the http://www.legislation.gov.uk/uksi/2015/238/conte Immigration Act 2014 and key equality impacts, nts/made 2014, 964 Regulation 2, NHS (Charges to Overseas http://www.edf.org.uk/blog/wp- Visitors) Regulations 2017/756 content/uploads/2014/09/Equality-impacts-IA- 965Shah v Barnet London Borough Council and other Sepp2014-final.pdf appeals [1983] 1 All ER 226 970Please note that MdM and its partners, especially 966R (YA) v Secretary of State for Health [2010] 1 All PICU M, absolutely disagree with the use of “illegal” E.R. 87, to describe a person. Only the laws declaring that a

156

UNITED KINGDOM

“abuse” of Article 8 of the European care, community healthcare and changing Convention on Human Rights – the right to current residency requirements for EEA respect for family and private life; and to citizens.975 Starting 6 April 2016, Australia prevent “illegal immigrants ” accessing and and New Zealand nationals planning to “abusing ” public services or the labour come to the UK or stay in the UK for more market.971 than 6 months will no longer be exempted from the “health surcharge” fee 976 (see 972 Section 39 Immigration Act 2014 , which below). came into force on 6 April 2015, introduced an additional element to the definition of Accessing the NHS “ordinary residence ” in the context of eligibility for free NHS treatment, by Primary care excluding all those who do not have 973 As of April 2017, patients in England pay indefinite leave to remain in the UK. This £8.60 (€9.77977 ) per prescription 978 , but applies to those who need leave to enter or some patients who need 14 or more remain but also those currently living and prescriptions per year or four or more working in the UK with limited leave to 974 prescriptions in three months can buy a remain. It therefore increased the Prescription Prepayment Certificate (PPC) threshold for “ordinary residence”, as in order to freeze prescription related indefinite leave to remain can only be expenses. A 3 month-PPC costs £29.10 applied for after a minimum of 5 years ’ (€33.07) and an annual PPC costs £104 lawful residence in the UK, excluding (€118.19).979 In Wales 980 , Scotland 981 and temporary migrants from free healthcare to Northern Ireland 982 , prescription charges which they previously had access. have been abolished. In addition to the changes in primary and Medicines administered at a hospital, a secondary legislation, the Department of walk-in centre or a GP practice, prescribed Health (DH) has introduced a programme contraceptives, medicines supplied at a aimed at recovering costs from foreign hospital or local clinic for the treatment of nationals called the Migrant and Visitor sexually transmitted infections or Cost Recovery Programme. The tuberculosis are free. Furthermore, all programme is divided into four phases: prescriptions are free for patients over 60 improving cost recovery from the current years old, under 16 years (under 25 in charging system, improving identification Wales) and under 18 for full-time students, of those who are eligible for/exempt from pregnant women and mothers who have had charging and implementing the migrant their child in the last year, chronically ill surcharge and extended charges to other persons (e.g. cancer and diabetes patients) services. In 2016, the DH consulted on and disabled patients, as well as for people making changes in primary care, secondary person is illegal are illegal. No one is illegal . 977 Exchange rate as of July 2017 http://picum.org/en/our-work/terminology/ 978https://www.gov.uk/government/speeches/nhs- 971 Op. cit. note 969 charges-from-april-2016 972http://www.legislation.gov.uk/ukpga/2014/22/sec 979 https://www.gov.uk/get-a-ppc tion/39/enacted 980http://www.wales.nhs.uk/nhswalesaboutus/budge 973 Op. cit. note 968 tcharges 974 Op. cit. note 968 981http://www.psd.scot.nhs.uk/prescriptioncharges.h 975https://www.gov.uk/government/uploads/system/ tml uploads/attachment_data/file/483870/NHS_chargin 982http://www.nhs.uk/ipgmedia/national/Asthma%2 g_acc.pdf 0UK/Assets/Prescriptionchargesandasthma.pdf 976https://www.gov.uk/government/news/immigrati on-health-surcharge-extends-to-australia-and-new- zealand

157

UNITED KINGDOM who receive some form of means-tested (GMS Regs), which governs the delivery of social security benefit.983 many NHS primary medical services 988 , defines “ patient ” as including temporary Patients on a low income can claim for help residents. Paragraph 16 of Schedule 6 GMS with health costs (by filling out an HC1 Regs 989 goes further in specifying that form). Help with health costs depends on “contractors may (…) accept a person as a the patient’s financial resourc es and not on temporary resident provided it is satisfied immigration status. The NHS decides that the person is temporarily resident away whether a patient should receive full help from his normal place of residence and is with health costs (an HC2 certificate) or not being provided with essential services partial help (an HC3 certificate). The (or their equivalent) under any other certificate is valid from 6 months to 5 years, arrangement in the locality where he is depending on the circumstances of the temporarily residing; or is moving from applicant, and must be produced each time place to place and not for the time being when collecting a prescription or receiving resident in any place ”. treatment, e.g. dental care, glasses. 984 In summary, everyone in England is entitled In England, Section 3 NHS Act 2006, as to free primary care regardless of amended by Section 13 Health & Social nationality or immigration status. 985 Care Act 2012 states that Clinical Therefore, asylum seekers, refugees, people Commissioning Groups (CCGs) “must on work visas and overseas visitors, arrange for the provision of services to whether they have permission to reside in patients (…) usually resident in its area”. the UK or not, are eligible to register with a Usual residence is not formally defined, but GP practice. GPs cannot refuse to register a Regulation 3 of the National Health Service patient for reasons that are discriminatory (CCGs – Disapplication of Responsibility) (on the grounds of race, gender, social class, 986 Regulations 2013 specifies that people age, religion, sexual orientation, are to be treated as “usually resident” at the appearance, disability or medical address given by them (or by someone on condition). A GP practice can only refuse to their behalf), if they give no address then register a patient if: their list is closed to they are to be treated as usually resident new patients; the patient lives outside the wherever they are present, thereby formally catchment area; or they have other unlinking immigration status from reasonable grounds. Inability to provide eligibility for primary care. proof of address or proof if identity are not reasonable groups to refuse a Regulation 2 of the NHS (General Medical registration.990 Services Contracts) Regulations 2004 987

983http://www.nhs.uk/NHSEngland/Healthcosts/Pag 987The National Health Service (General Medical es/Prescriptioncosts.aspx Services Contracts) Regulations of 2004 , 984http://www.nhs.uk/NHSEngland/Healthcosts/Pag http://www.legislation.gov.uk/uksi/2004/291/regula es/nhs-low-income-scheme.aspx tion/2/made 985National Health Service Act of 2006 , 988Many primary medical services are provided http://www.legislation.gov.uk/ukpga/2006/41/sectio under the NHS (Personal Medical Services n/3 ; Health and Social Care Act of 2012 , Agreements) Regulations 2004 (‘the PMS Regs’) http://www.legislation.gov.uk/ukpga/2012/7/section instead, but the relevant provisions are identical in /13 both sets of Regulations. 986The National Health Service (Clinical 989http://www.legislation.gov.uk/uksi/2015/196/pdf Commissioning Groups — Disapplication of s/uksi_20150196_en.pdf Responsibility) Regulations of 2013 , 990NHS England, Standard Operating Principles of http://www.legislation.gov.uk/uksi/2013/350/regula for Primary Medical Care (General Practice), tion/3/made https://www.england.nhs.uk/commissioning/wp-

158

UNITED KINGDOM

Secondary care of any relevant services provided to an Ordinary residence overseas visitor where those services are All “ ordinary residents ” of the UK are provided in circumstances covered by a automatically entitled to secondary reciprocal agreement with a country or territory specified in Schedule 2” of the healthcare that is largely free at the point of 994 use through the NHS.991 People who are not Regulations. ordinary residents, such as visitors or Exemptions undocumented migrants, are only entitled to Some NHS services are free to everyone limited free secondary care in emergency regardless of the status of the patient: departments and for certain infectious diseases, unless they come within one of the · Services provided for the treatment categories of people who are exempt from of a physical or mental condition charges. caused by torture, female genital Non EEA nationals mutilation, domestic violence or Since 6 April 2015, as provisions of the sexual violence, provided that the Immigration Act 2014 came into force, overseas visitor has not travelled to the United Kingdom for the purpose nationals of countries from outside the EEA 995 coming to the UK for longer than six of seeking that treatment. This months are required to pay a “health includes mental health treatment. surcharge” when they make their · Accident and emergency (A&E) immigration application.992 This also services, whether provided at a concerns third-country nationals already in hospital accident and emergency the UK who apply to extend their stay. department, a minor injuries unit or a walk-in centre or elsewhere.996 The health surcharge is of £200 (€227.30) · Family planning services and per year and £150 (€170.47) per year for treatment of sexually transmitted students, payable upfront and for the total infections 997 – although details of period of time for which migrants are given the services are not specified in Reg. permission to stay in the UK. It entitles the 9, family planning clinics typically payer to NHS funded healthcare on the offer advice about sexual and same basis as ordinary residents. People reproductive health, as well as who live outside the EEA and do not have contraception (combined oral insurance will be charged at 150% of the contraceptive pills, progestogen- NHS national tariff for any secondary care only pills, progestogen injections, they receive. Certain categories are emergency contraception and exempted from charging as UK Crown intrauterine devices), limited servants or members of armed forces.993 supplies of free condoms, cervical screening and pregnancy tests 998 , as Reciprocal healthcare agreements well as testing for Sexually Under Regulation 14 NHS (Charges to Transmitted Infections (STIs). Overseas Visitors) Regulations 2015, “no · Diagnosis and treatment for charge may be made or recovered in respect communicable diseases such as content/uploads/sites/12/2015/11/pat-reg-sop-pmc- 993 Ibid. gp.pdf 994 Op. cit. note 992 991Op. cit. note 959 995http://www.gov.uk/guidance/nhs-entitlements- 992https://www.gov.uk/government/publications/gui migrant-health-guide dance-on-overseas-visitors-hospital-charging- 996Ibid. regulations/summary-of-changes-made-to-the-way- 997Ibid. the-nhs-charges-overseas-visitors-for-nhs-hospital- 998http://www.nhs.uk/Conditions/contraception- care guide/Pages/contraception-clinic-services.aspx

159

UNITED KINGDOM

influenza, measles, mumps, Hospitals are required to inform the Home tuberculosis, viral hepatitis and Office of patients who owe the NHS a debt HIV/AIDS.999 of more than £500 (€568.25), outstanding The following categories of the population for 2 months or more, and such people may are exempt from charges: refugees, asylum be refused visa renewals or regularisation of seekers, those whose application for asylum their immigration status until the debt is was rejected, but who are supported by the paid.1004 Home Office or a local authority, children looked after by a local authority, victims of Access to healthcare for human trafficking and modern slavery; migrants those receiving compulsory treatment under the Mental Health Act, prisoners and Asylum seekers and refugees immigration detainees.1000 There may also be exceptional humanitarian reasons where Regulation 15 (a) of the NHS (Charges to the secretary of state can determine that Overseas Visitors) Regulations 2015 states treatment should be provided, although in that anyone who has been granted practice these will be very rare.1001 temporary protection, asylum or humanitarian protection under the Any treatment which is considered to be immigration rules made under Section 3(2) immediately necessary by clinicians of the Immigration Act 1971 is exempt from (including all maternity care), whilst charges. Regulation 15(b) states that anyone chargeable, must be provided without who has made a formal application with the waiting for payment or even a deposit. Home Office to be granted temporary However, the patient may still be billed protection, asylum or humanitarian during or after treatment.1002 Indeed, from protection is also fully exempt from charges 23 October 2017, organisations providing whilst their application is being NHS secondary or tertiary care have a legal processed.1005 This includes applications obligation to secure payment for treatment for leave to remain made on the basis that that clinicians deem to be non-urgent, in return to country of origin would breach advance of providing treatment.1003 Article 3 ECHR.1006

999 Schedule 1 of the Regulations specifies those 1001Op. cit. Note 995 diseases for which no charge is to be made: acute 1002Department of Health, Guidance on encephalitis, acute poliomyelitis, anthrax, botulism, implementing the overseas visitor hospital charging brucellosis, cholera, diphtheria, enteric fever regulations 2015 , (typhoid and paratyphoid fever), food poisoning, https://www.gov.uk/government/uploads/system/up haemolytic uremic syndrome, infectious bloody loads/attachment_data/file/418634/Implementing_o diarrhoea, invasive group A streptococcal disease verseas_charging_regulations_2015.pdf and scarlet fever, invasive meningococcal disease 1003 Regulation 4 NHS Charges to Overseas Visitors (meningococcal meningitis, meningococcal (Amendment) Regulations 2017/756 septicaemia and other forms of invasive disease), 1004https://www.gov.uk/government/uploads/system legionnaires’ disease, leprosy, leptospirosis, malaria, /uploads/attachment_data/file/507694/Overseas_ch measles, mumps, pandemic influenza or influenza argeable_patients_2016.pdf that might become pandemic, plague, rabies, rubella, 1005The National Health Service (Charges to Severe Acute Respiratory Syndrome (SARS), Overseas Visitors) Regulations of 2015 , smallpox, tetanus, tuberculosis, typhus, viral http://www.legislation.gov.uk/uksi/2015/238/pdfs/u haemorrhagic fever, viral hepatitis, whooping cough, ksi_20150238_en.pdf yellow fever and, since the 2012 amendment, also 1006 (p.6) HIV/AIDS. https://www.gov.uk/government/uploads/system/up http://www.legislation.gov.uk/uksi/2015/238/sched loads/attachment_data/file/597377/Humanitarian- ule/1/made protection-v5_0.pdf 1000https://www.gov.uk/government/uploads/system /uploads/attachment_data/file/496951/Overseas_vis itor_hospital_charging_accs.pdf, p. 11-12

160

UNITED KINGDOM

This exemption will apply to the immediate Focus on pregnant women and children family of the asylum seeker if they are Under this scheme, pregnant asylum living in the UK with that person on a 1007 seekers and refugees have free access to permanent basis. Asylum seekers and antenatal, delivery and postnatal care. The rejected asylum seekers who are not entitled children of asylum seekers and refugees, to free prescriptions under these categories like adults, have free access to the NHS and have to make a Low Income Scheme (LIS) this includes vaccination. HC1 claim.1008 Undocumented migrants In 2009, the Court of Appeal in England and Wales, overturning an earlier High Court Undocumented migrants are not excluded judgment, ruled that rejected asylum from primary care. Indeed, the Secretary of seekers could not be considered ordinary State for Health (health minister) residents in the UK for the purposes of the announced that there is no formal charging regulations and could not become requirement to provide documentation exempt from charges after living in the UK when registering with a GP. GPs do not for 12 months prior to treatment.1009 As have any financial reason not to register health policy is a devolved responsibility, undocumented migrants – their global sum however, different exemptions, policy and payments in respect of overseas patients do guidance exists in each of the four countries not differ from that of other patients.1013 and access to free hospital treatment for Finally, there is no minimum period that a refused asylum seekers differs from country person needs to have been in the UK before to country within the UK.1010 a GP can register him/her.1014 In Scotland and Wales, asylum seekers and In the same way as UK citizens, refused asylum seekers are entitled to free undocumented migrants can be exempt secondary healthcare on the same terms as from prescription charges, dental care any other ordinary resident.1011 In England, charges, etc. with an HC2 certificate. only refused asylum seekers who receive accommodation and support from the Home Adults over 60 have automatic free Office under section 4(2) Immigration & prescriptions and eye tests. They can obtain Asylum Act 1999 or accommodation and free dental treatment with an HC2 1015 support from a local authority under the certificate. However, obtaining an Care Act 2014 are entitled to free secondary exemption certificate does not ensure that healthcare. However, all refused asylum an undocumented patient can access NHS seekers can continue, free of charge, with care – it only helps with the cost of any course of treatment already underway prescriptions. Undocumented migrants do before their application was refused.1012 have to pay for NHS hospital and secondary care charges.

Regarding access to secondary care, undocumented migrants are only entitled to

1007 Regulation 25(2) NHS (Charges to Overseas 1012 Regulation 3(5) NHS (Charges to Overseas Visitors) Regulations 2015/238 Visitors) Regulations 2015/238 http://www.legislation.gov.uk/uksi/2015/238/pdfs/u 1013http://www.publications.parliament.uk/pa/cm20 ksi_20150238_en.pdf 1213/cmhansrd/cm121026/text/121026w0001.htm 1008http://www.nhsbsa.nhs.uk/HealthCosts/1136.asp 1014 (p.105) x https://www.gov.uk/government/uploads/system/up 1009Op. cit. note 966 loads/attachment_data/file/496951/Overseas_visitor 1010Op. cit. note 1002 _hospital_charging_accs.pdf 1011 https://www.gov.uk/guidance/nhs-entitlements- 1015 http://patient.info/health/help-with-health-costs migrant-health-guide

161

UNITED KINGDOM limited free secondary care in emergency chargeable patients, even if they have not departments and for certain infectious paid in advance. diseases, unless they come within one of the categories of people who are exempt from Children of undocumented migrants charges. Thus, they have to pay to access Vaccination is available for all children and secondary care, although immediately adults through their GP and baby clinics. necessary or urgent treatment should not be All children are exempt from prescription withheld pending payment. charges, dental care and optometry charges. Charges for secondary care are applied to A memorandum of understanding between undocumented children in the same ways as the Home Office and NHS Digital, which adults. came into effect on 1 January 2017 allows NHS Digital to share non-clinical data EU mobile citizens including name and addresses of immigration offenders for the purpose of EU mobile citizens have the same access to “encouraging voluntary return by denying primary care as UK nationals and can access to benefits and services to which benefit from the same exemptions from [those here illegally] are not entitled ”1016 secondary care charging regulations. thus putting another barrier to access to Entitlement to free NHS treatment will healthcare. depend on the individual’s circumstances and, in particular, whether s/he is insured in Moreover, from 21 August 2017, his/her country of origin, which is best organisations providing NHS services demonstrated by having an EHIC. EEA became legally obliged to record patients’ nationals may also be “ordinarily resident” immigration status on their NHS in the UK if they are there lawfully, have records.1017 been in the UK for more than a short period and intend to remain. Undocumented pregnant women If insured, an EEA or Switzerland national Undocumented pregnant women should is exempt from charges for “all medically receive maternity care but this is necessary treatment”, i.e. treatment that it is chargeable. Indeed, maternity care, medically necessary to have during his/her including antenatal care, delivery and temporary stay in the UK, with a view to postnatal care, is not free at the point of use preventing him/her from being forced to as it is considered as secondary care. Thus, return home for treatment before the end of hospitals usually bill for a full course of care the planned duration of his/her stay. For throughout the pregnancy, which is around instance, regarding England, this €7,000 if there are no complications. means 1018 : The Department of Health has stressed Ø diagnosis of symptoms or signs repeatedly that providers also have human occurring for the first time after the rights obligations, meaning that treatment visitor’s arrival in the UK; considered by clinicians to be immediately Ø any other treatment which, in the necessary (including all maternity opinion of a medical or dental treatment) must never be withheld from practitioner employed by or under contract with a CCG, is required

1016 Memorandum of Understanding between Health 1017 Regulation 5 NHS Charges to Overseas Visitors and Social Care information centre and the Home (Amendment) Regulations 2017 2017/756 Office , pp.4-6 http://www.legislation.gov.uk/uksi/2017/756/pdfs/u https://www.gov.uk/government/uploads/system/up ksi_20170756_en.pdf loads/attachment_data/file/585928/MOU_v3.pdf 1018 Op. cit. note 1002

162

UNITED KINGDOM

promptly for a condition which: arose NHS and would have to pay the full cost. In after the visitor’s arrival; or became June 2017, the Parliament passed an acutely exacerbated after his/her amendment allowing Northern Ireland arrival; or would be likely to become women to be covered by the NHS for acutely exacerbated without abortion in England. 1021 treatment; plus Ø the treatment of chronic, or pre- Two doctors must agree that a termination existing, conditions, including routine would cause less damage to a woman’s monitoring and routine maternity physical or mental health than continuing 1022 care. with the pregnancy. According to the MdM UK team in London, it may be If economically active in the UK (i.e. difficult to obtain a termination of employed, self-employed, involuntarily pregnancy free of charge without a referral unemployed for less than six months or from a GP. temporarily incapacitated), the patient is likely to have a right to reside in the UK However, as termination of pregnancy is under the Immigration (EEA) Regulations considered secondary care, from 23 October 2006 and EU Directive 2004/38. The UK is 2017, when the NHS Charges to Overseas thus prohibited from treating such patients Visitors (Amendment) Regulations 2017 any differently from UK nationals, so as come into force, women who are not long as they are not short-term visitors they ordinarily resident in the UK will have to will have a right to free hospital treatment pay for such treatment, failing which, they either by being considered “ordinarily may not receive it if it is not deemed by a resident” in the UK, or by having an clinician to be “immediately necessary” or enforceable right to treatment through EU “urgent”. law.1019 Unaccompanied minors Termination of pregnancy Unaccompanied minors who are “ seeking Termination of pregnancy is possible asylum ” or have “ refugee status ” are during the first 24 weeks of pregnancy (and exempt from charges in the same way as later in the pregnancy in certain any other asylum seeker or refugee. If there circumstances) and must be carried out in a is nobody with parental responsibility who hospital or a specialist licensed clinic (e.g. is able to look after them, they can enter in some local family planning clinics or local authority care under the Children Act genito-urinary medicine clinics that are also 1989 and become “looked after children”, accessible to undocumented women).1020 meaning that they are exempt from all However, the Abortion Act of 1967 charges.1023 Unaccompanied minors whose allowing abortion during the first 24 weeks asylum claims are rejected will, once they of pregnancy does not extend to Northern turn 18 and leave local authority care, no Ireland where women face life sentence for longer be exempt from charging. abortion. Until June 2017, women could still travel to England to terminate their pregnancy, but would not be covered by the

1019 Op. cit. note 1002 1023J. Simmonds and F. Merredew, “ The Health 1020http://www.nhs.uk/conditions/Abortion/Pages/In Needs of Unaccompanied Asylum Seeking Children troduction.aspx and Young People ”, EP23 - LAC 9.4 1021 http://www.bbc.com/news/uk-politics- Unaccompanied asylum seeking children , 40438390 https://www.nice.org.uk/guidance/ph28/evidence/lo 1022 Abortion Act of 1967 , this Act covers England, oked-after-children-ep23-unaccompanied-asylum- Scotland and Wales seeking-children-john-simmonds-and-florence- merredew2

163

UNITED KINGDOM

Protection of seriously ill not in themselves render expulsion inhuman foreign nationals treatment contrary to Article 3 of the European Convention on Human Rights. Discretionary Leave and Humanitarian Protection were introduced on 1 April 2003 The threshold set by Article 3 is therefore a to replace Exceptional Leave to high one as interpreted by the UK and the Remain.1024 European Court of Human Rights. It is Humanitarian Protection is granted when a “whether the applicant’s illness has person is found not to be a refugee under the reached such a critical stage that it would 1951 Convention relating to the Status of be inhuman treatment to deprive him/her of Refugees and the 1967 Protocol (the the care which s/he is currently receiving Refugee Convention) but there is a well- and send him/her home to an early death founded fear of the death penalty, torture, unless there is care available there to inhuman and degrading treatment or a enable him/her to meet that fate with serious threat against his/her life relating to dignity ”.1026 widespread violence resulting from a situation of internal or international armed To meet the very high Article 3 threshold, conflict. an applicant must show exceptional circumstances that prevent return, namely Cases where it is claimed that removal that there are compelling humanitarian would be a breach of Article 3 of the considerations, such as the applicant being European Convention on Human Rights on in the final stages of a terminal illness medical grounds will not be considered without prospect of medical care or family eligible for Humanitarian Protection, given support on return. that “in such cases the allege d future harm would emanate not from the intentional acts The duration of Discretionary Leave or omissions of public authorities or non- granted is determined by a consideration of State bodies, but instead from a naturally the individual facts of the case but leave is occurring illness and the lack of sufficient not normally granted for more than 30 resources to deal with it in the receiving months at a time.1027 Subsequent periods of country” .1025 Instead, they should be leave can be granted providing the applicant considered under the Discretionary Leave continues to meet the relevant criteria. policy. Thus, foreign nationals who apply for Discretionary Leave have to be close to This Discretionary Leave can be granted to death in order to have a chance to obtain it. persons (seeking asylum or not) who require medical, social or another form of Prevention and treatment of assistance which can be provided in the UK. HIV The improvement or stabilisation of an applicant’s medical condition resulting The question of who should be able to from treatment in the UK and the prospect receive free HIV/AIDS screening and of serious or fatal relapse on expulsion do treatment in the UK has been a much

1024 1026N. v Secretary of State for the Home Department , https://www.gov.uk/government/uploads/system/up 2005, House of Lords, loads/attachment_data/file/460712/Discretionary_L http://www.bailii.org/uk/cases/UKHL/2005/31.html eave_2__v7_0.pdf 1027 Op. cit. note 1024 1025 N. v United Kingdom , 2008, European Court of https://www.gov.uk/government/uploads/system/up Human Rights, loads/attachment_data/file/460712/Discretionary_L http://www.refworld.org/docid/483d0d542.html eave_2__v7_0.pdf The European Court of Human Rights reached the same conclusion as the House of Lords.

164

UNITED KINGDOM debated public health issue. On 1 October classified as ordinarily resident in the UK, 2012, screening and treatment was made meaning they were not entitled to free NHS free to anyone in the UK, regardless of their treatment and care. residency status or of how long they have been in the UK.1028 The 2012 change in policy was largely made because of the public health benefits Treatment is to be provided to of ensuring universal access to HIV undocumented migrants living with HIV treatment. Adherence to HIV treatment (or and to individuals diagnosed during a stay antiretrovirals) reduces the risk of HIV to the UK. The NHS also provides limited transmission and therefore prevents new emergency access to treatment to short- HIV infections. It is hoped that the terms visitors living with HIV who, in the opportunity to access free HIV screening event of unforeseen circumstances, do not and treatment will make people more likely have their medication with them, until to be tested and find out their status.1031 alternative arrangements are made. Before 2004, free HIV (and any other chargeable) treatment was available for anyone who had spent the previous twelve months in the UK, whether it was legally or not. In 2004, the rule was changed, so that the twelve months’ residency had to be lawful, so HIV (and any other chargeable) treatment were available only to those legally living in the UK. This meant that short-term overseas visitors and undocumented migrants (such as failed asylum seekers or people who had not applied for legal residence) had to pay to receive antiretroviral HIV treatment through the National Health Service.1029 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 rights.1030 In March 2009, this ruling was overturned and the Court of Appeal ruled that failed asylum seekers should not be

1028Regarding England: 1029The National Health Service (Charges to http://www.aidsmap.com/HIV-treatment-and- Overseas Visitors) (Amendment) Regulations of care/page/2526102/ 2004 , Regarding Scotland: http://www.legislation.gov.uk/uksi/2004/614/conte http://www.legislation.gov.uk/uksi/1989/364/made nts/made Regarding Wales: 1030S. Boseley, “Asylum seekers have right to full https://www.welshrefugeecouncil.org/migration- NHS care, high court rules, but government information/legal-briefings/access-to-healthcare- considers appeal”; The Guardian, 2008, for-migrants-in-wales http://www.theguardian.com/uk/2008/apr/12/immig ration.publicservices 1031 http://www.avert.org/hiv-treatment-uk.htm

165

Acknowledgements Contributors This work received support from the We would like to thank everyone who Ministry of Health (France), the European contributed to this report from the various Programme for Integration and Migration Doctors of the World – Médecins du monde (EPIM) – a collaborative initiative of the chapters and from our partners. Network of European Foundations (NEF) – Vulnerability Network : Camille Gutton and the European Commission (DG Health and Food Safety), under an operating grant BE (Médecins du Monde Belgium – from the European Union’s Health Dokters van de Wereld ) Nel Vandevannet; Programme (2014-2020). Clara Borg, Loranci Anamdarajah CH (Médecins du Monde Switzerland) The content of this report represents the Janine Derron; Line Voegtli views of the authors only and is their sole responsibility; it cannot be considered to DE (Médecins du Monde Germany – Ärzte reflect the views of the French Ministry of der Welt ) Johanna Offe; Carolin Bader; Social Affairs and Health, NEF, EPIM or Sabine Fürst; Gwendolin Buddeberg partner foundations, or of the European EL (Médecins du Monde Greece – Γιατροί Commission and/or the Consumers, Health του Κόσμου ) Stathis Poularakis and Food Executive Agency or any other body of the European Union. The European ES (Médecins du Monde Spain – Médicos Commission and the Agency do not accept del Mundo) Pablo Iglesias; Alberto León; any responsibility for use that may be made Beatriz Auseré; Miguel Pérez-Lozao of the information it contains. FR (Médecins du Monde France) Flore Ganon-Lecomte; Corentin Bailleul; Nathalie Godard; Marie-Dominique Pauti IE (Migrant Rights Centre Ireland) Gráinne O' Toole IT (NAGA Milano) Pierfranco Olivani; Daniela Panizzut LU (Médecins du Monde Luxembourg – Dokteren vun der Welt ) Sylvie Martin NL (Médecins du Monde Netherlands – Dokters van de Wereld ) Joëlla Bravo Mougán; Jan Vosters

NO (Health Centre for Undocumented Migrants - Helsesenteret for papirløse Author migranter ) Frode Eick Isabelle Noret RO (Carusel) SE (Médecins du Monde Sweden – Läkare Co-authors i Världen ) Niclas Hell SI (Slovene Philanthropy – Slovenska Dagna Frydryszak (2016 report) Filantropija ) Helena Liberšar Anne-Laure Macherey (2015 report) Nathalie Simonnot (2016 and 2015 reports) TR (ASEM – Association de Solidarité et d'entraide aux migrants ) Amadou Diallo; Ayse Lerzan Caner UK (Doctors of the World) Lucy Jones – Anna Miller – Adam Hundt

166