LEGAL REPORT ON ACCESS TO HEALTHCARE IN 17 COUNTRIES

@Yiannis Yiannakopoulos

BELGIUM - CANADA - FRANCE - GERMANY - GREECE - IRELAND - ITALY - LUXEMBOURG - NETHERLANDS - NORWAY - ROMANIA - SLOVENIA - SPAIN - SWEDEN - SWITZERLAND - TURKEY - UNITED-KINGDOM

15 NOVEMBER 2016

TABLE OF CONTENTS EXECUTIVE SUMMARY ...... 6 ACRONYMS ...... 8 GLOSSARY ...... 12 BELGIUM ...... 13 NATIONAL HEALTH SYSTEM ...... 13 CONSTITUTIONAL BASIS ...... 13 ORGANISATION AND FUNDING OF BELGIAN HEALTHCARE SYSTEM ...... 13 ACCESSING BELGIUM HEALTHCARE SYSTEM ...... 14 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 15 ASYLUM SEEKERS, REFUGEES AND THOSE ELIGIBLE FOR SUBSIDIARY PROTECTION ...... 15 UNDOCUMENTED MIGRANTS ...... 16 EU CITIZENS ...... 19 UNACCOMPANIED MINORS ...... 20 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 20 THE ADMISSIBILITY OF THE APPLICATION ...... 21 THE SUBSTANTIVE DECISION ...... 21 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 22 CANADA (QUEBEC) ...... 23 NATIONAL HEALTH SYSTEM ...... 23 ORGANISATION AND FUNDING OF CANADIAN HEALTHCARE SYSTEM ...... 23 ACCESSING CANADA HEALTHCARE SYSTEM ...... 23 ACCESSING QUEBEC HEALTHCARE SYSTEM ...... 24 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 25 ASYLUM SEEKERS AND REFUGEES ...... 25 UNDOCUMENTED MIGRANTS ...... 29 UNACCOMPANIED MINORS ...... 32 ABORIGINALS IN QUEBEC ...... 32 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 33 TREATMENT OF INFECTIOUS DISEASES ...... 34 FRANCE ...... 35 NATIONAL HEALTH SYSTEM ...... 35 CONSTITUTIONAL BASIS ...... 35 ORGANISATION AND FUNDING OF FRENCH HEALTHCARE SYSTEM ...... 35 ACCESSING FRANCE HEALTHCARE SYSTEM ...... 36 UNIVERSAL MEDICAL COVERAGE: PUMA AND CMU-C ...... 37 SUPPLEMENTARY HEALTH INSURANCE ASSISTANCE SCHEME: ACS ...... 38 THE FREE MEDICAL CENTRE SYSTEM (PERMANENCE D’ACCES AUX SOINS – PASS) ...... 39 POSITIVE REFORM ON ELIGIBILITY CRITERIA ...... 39 NEW HEALTHCARE BILL – JANUARY 2016 ...... 40 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 40 ASYLUM SEEKERS AND REFUGEES ...... 40 UNDOCUMENTED MIGRANTS ...... 42 EU CITIZENS ...... 44 UNACCOMPANIED MINORS ...... 45 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 45 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 47

 Page 1 SEXUALLY TRANSMITTED INFECTIONS ...... 47 TUBERCULOSIS ...... 48 THE SITUATION IN MAYOTTE ...... 48 DISCRIMINATION BY THE HEALTHCARE SCHEME ...... 48 COMPLIANCE TO LAW ...... 49 GERMANY ...... 50 NATIONAL HEALTH SYSTEM ...... 50 ORGANISATION AND FUNDING GERMAN HEALTHCARE SYSTEM ...... 50 ACCESSING GERMANY HEALTHCARE SYSTEM ...... 51 RECENT REFORMS ...... 52 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 53 ASYLUM SEEKERS AND REFUGEES ...... 53 UNDOCUMENTED MIGRANTS ...... 55 TERMINATION OF PREGNANCY ...... 57 EU CITIZENS ...... 58 UNACCOMPANIED MINORS ...... 58 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 59 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 59 GREECE ...... 61 NATIONAL HEALTH SYSTEM ...... 61 CONSTITUTIONAL BASIS ...... 61 HISTORICAL BACKGROUND ...... 61 ORGANISATION AND FUNDING OF GREEK HEALTHCARE SYSTEM ...... 61 RECENT STRUCTURAL REFORMS OF THE HEALTHCARE SYSTEM ...... 61 FUNCTIONING OF GREEK HEALTHCARE SYSTEM ...... 62 ACCESSING GREECE HEALTHCARE SYSTEM ...... 63 POSITIVE REFORM ...... 64 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 65 ASYLUM SEEKERS AND REFUGEES ...... 65 UNDOCUMENTED MIGRANTS ...... 65 EU CITIZENS ...... 66 UNACCOMPANIED MINORS ...... 67 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 68 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 68 DETENTION ON PUBLIC HEALTH GROUNDS ...... 68 HIV TESTING AND TREATMENT ...... 68 IRELAND ...... 70 NATIONAL HEALTH SYSTEM ...... 70 BASIS, ORGANISATION AND FUNDING OF IRISH HEALTHCARE SYSTEM ...... 70 ACCESSING IRELAND HEALTHCARE SYSTEM ...... 72 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 74 ASYLUM SEEKERS AND REFUGEES ...... 75 UNDOCUMENTED MIGRANTS ...... 76 EU CITIZENS ...... 77 RECIPROCAL HEALTH AGREEMENT ...... 78 UNACCOMPANIED MINORS ...... 78 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 78 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 79 IRISH TRAVELLERS: A NATIONAL SPECIFIC SITUATION ...... 80

 Page 2 LUXEMBOURG ...... 82 NATIONAL HEALTH SYSTEM ...... 82 CONSTITUTIONAL BASIS ...... 82 ORGANISATION AND FUNDING OF THE HEALTHCARE SYSTEM ...... 82 ACCESSING LUXEMBOURG HEALTHCARE SYSTEM ...... 82 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 84 ASYLUM SEEKERS AND REFUGEES ...... 84 UNDOCUMENTED MIGRANTS ...... 85 TERMINATION OF PREGNANCY ...... 86 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 86 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 87 NETHERLANDS ...... 89 NATIONAL HEALTH SYSTEM ...... 89 CONSTITUTIONAL BASIS ...... 89 ORGANISATION AND FUNDING OF DUTCH HEALTHCARE SYSTEM ...... 89 ACCESSING THE NETHERLANDS HEALTHCARE SYSTEM ...... 89 TERMINATION OF PREGNANCY ...... 91 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 91 ASYLUM SEEKERS, REFUGEES AND PERSONS ELIGIBLE FOR SUBSIDIARY PROTECTION ...... 91 UNDOCUMENTED MIGRANTS ...... 92 EU CITIZENS ...... 93 UNACCOMPANIED MINORS ...... 94 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 94 POSTPONED DEPARTURE FROM THE NETHERLANDS DUE TO MEDICAL EMERGENCIES ...... 94 RESIDENCE PERMIT FOR MEDICAL TREATMENT ...... 94 RESIDENCE PERMIT FOR MEDICAL TREATMENT AFTER ONE YEAR OF ARTICLE 64 ...... 95 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 96 NORWAY ...... 97 NATIONAL HEALTH SYSTEM ...... 97 CONSTITUTIONAL BASIS ...... 97 ORGANISATION AND FUNDING OF NORWEGIAN HEALTHCARE SYSTEM ...... 97 ACCESSING NORWEGIAN HEALTHCARE SYSTEM ...... 98 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 101 ASYLUM SEEKERS AND REFUGEES ...... 101 UNDOCUMENTED MIGRANTS ...... 102 TERMINATION OF PREGNANCY ...... 105 EU AND EEA CITIZENS ...... 105 UNACCOMPANIED MINORS ...... 105 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 105 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 106 ROMANIA ...... 107 NATIONAL HEALTH SYSTEM ...... 107 CONSTITUTIONAL BASIS ...... 107 ORGANISATION AND FUNDING OF ROMANIA HEALTHCARE SYSTEM ...... 107 ACCESSING ROMANIA HEALTHCARE SYSTEM ...... 108 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 109 ASYLUM SEEKERS, REFUGEES AND THOSE ELIGIBLE FOR SUBSIDIARY PROTECTION ...... 109 UNDOCUMENTED MIGRANTS ...... 111 FOREIGNERS IN ACCOMMODATION CENTRES ...... 112

 Page 3 EU CITIZENS ...... 112 UNACCOMPANIED MINORS ...... 112 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 113 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 114 SLOVENIA ...... 117 NATIONAL HEALTH SYSTEM ...... 117 CONSTITUTIONAL BASIS ...... 117 ORGANISATION AND FUNDING OF THE SLOVENIAN HEALTHCARE SYSTEM ...... 117 ACCESSING SLOVENIA HEALTHCARE SYSTEM ...... 118 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 121 AUTHORIZED NON-EU RESIDENTS ...... 121 ASYLUM SEEKERS ...... 121 REFUGEES AND PERSONS UNDER INTERNATIONAL PROTECTION ...... 121 UNDOCUMENTED MIGRANTS ...... 122 TERMINATION OF PREGNANCY ...... 122 EU CITIZENS ...... 123 BILATERAL AGREEMENTS ...... 123 UNACCOMPANIED MINORS ...... 123 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 124 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 124 HEALTH CENTRES FOR UNINSURED PERSONS ...... 124 SPAIN ...... 126 NATIONAL HEALTH SYSTEM ...... 126 CONSTITUTIONAL BASIS ...... 126 ORGANISATION AND FUNDING OF SPANISH HEALTHCARE SYSTEM ...... 126 ACCESSING SPAIN HEALTHCARE SYSTEM AFTER 2012 ROYAL-DECREE ...... 126 REFORM ENDING UNIVERSAL ACCESS TO CARE ...... 127 CONSEQUENCES OF THE 2012 HEALTH REFORM IN SPAIN ...... 129 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 129 ASYLUM SEEKERS AND REFUGEES ...... 129 UNDOCUMENTED MIGRANTS ...... 130 EU CITIZENS ...... 131 UNACCOMPANIED MINORS ...... 132 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 132 TREATMENT OF INFECTIOUS DISEASES ...... 132 SWEDEN ...... 135 NATIONAL HEALTH SYSTEM ...... 135 CONSTITUTIONAL BASIS ...... 135 ORGANISATION AND FUNDING OF SWEDISH HEALTHCARE SYSTEM ...... 135 ACCESSING SWEDEN HEALTHCARE SYSTEM ...... 136 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 137 ASYLUM SEEKERS AND REFUGEES ...... 137 UNDOCUMENTED MIGRANTS ...... 138 EU CITIZENS ...... 140 UNACCOMPANIED MINORS ...... 141 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 141 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 141 SWITZERLAND ...... 143 NATIONAL HEALTH SYSTEM ...... 143

 Page 4 CONSTITUTIONAL BASIS ...... 143 ORGANISATION AND FUNDING OF SWISS HEALTHCARE SYSTEM ...... 143 ACCESSING SWITZERLAND HEALTHCARE SYSTEM ...... 144 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 146 ASYLUM SEEKERS AND REFUGEES ...... 146 UNDOCUMENTED MIGRANTS ...... 147 EU CITIZENS ...... 148 TERMINATION OF PREGNANCY ...... 148 UNACCOMPANIED MINORS ...... 149 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 149 TREATMENT OF INFECTIOUS DISEASES ...... 150 TURKEY ...... 151 NATIONAL HEALTH SYSTEM ...... 151 CONSTITUTIONAL BASIS ...... 151 TOWARDS UNIVERSAL HEALTH COVERAGE ...... 151 ORGANISATION AND FUNDING OF TURKISH HEALTHCARE SYSTEM ...... 151 ACCESSING TURKEY HEALTHCARE SYSTEM ...... 151 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 153 AUTHORISED RESIDENTS ...... 153 ASYLUM SEEKERS AND REFUGEES ...... 153 UNDOCUMENTED MIGRANTS ...... 155 UNACCOMPANIED MINORS ...... 157 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 158 PREVENTION AND TREATMENT OF INFECTIOUS DISEASES ...... 158 UNITED KINGDOM ...... 159 NATIONAL HEALTH SYSTEM ...... 159 ORGANISATION AND FUNDING OF BRITISH HEALTHCARE SYSTEM ...... 159 THE CONCEPT OF ORDINARY RESIDENCE ...... 160 ACCESSING THE NHS ...... 161 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 164 ASYLUM SEEKERS AND REFUGEES ...... 164 UNDOCUMENTED MIGRANTS ...... 165 EU CITIZENS ...... 166 TERMINATION OF PREGNANCY ...... 166 UNACCOMPANIED MINORS ...... 167 PROTECTION OF SERIOUSLY ILL FOREIGN NATIONALS ...... 167 PREVENTION AND TREATMENT OF HIV ...... 168 ITALY ...... 169 NOTE SPECIFIC TO THIS SECTION...... 169 NATIONAL HEALTH SYSTEM ...... 169 CONSTITUTIONAL BASIS ...... 169 ORGANISATION AND FUNDING OF ITALY HEALTHCARE SYSTEM ...... 169 ACCESSING ITALIAN HEALTHCARE SYSTEM ...... 170 ACCESS TO HEALTHCARE FOR MIGRANTS ...... 170 UNDOCUMENTED MIGRANTS ...... 170 EU CITIZENS ...... 173 IMPLEMENTATION OF THE NATIONAL HEALTH LEGISLATION FOR UNDOCUMENTED MIGRANTS174 ACKNOWLEDGEMENTS ...... 176

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citizens without authorisation to reside in EXECUTIVE SUMMARY most of the EU countries, so they face even more barriers to access healthcare, except in Working method Belgium and France. This legal report aiming to describe 17 Undocumented migrants national healthcare systems1 was written using both legal expertise and feedback Undocumented migrants are the most from the field. The public healthcare system excluded from access to healthcare. In the of each country is described as it is foreseen majority of countries5, they can only access by the national laws, completed by a healthcare if they can cover its full price, description of the reality of access to except for emergency care which is free of healthcare. Several categories of people are charge6. highlighted as specific provisions apply to 7 them, generally restricting their access to As many as 4 of the studied states the public healthcare system. explicitly exclude undocumented migrants from their public healthcare systems in non- Asylum seekers and refugees urgent cases. Only 38 states provide for The last couple of years were characterized some limited access to free healthcare by a great arrival of migrants seeking beyond emergencies for undocumented asylum in Europe. Most of the destination migrants. Belgium and France are the only countries provide at least basic healthcare to states with a specific health scheme for all asylum seekers and refugees for free. undocumented migrants, even though they still remain separated from the mainstream In 8 states studied in the report2, asylum national health scheme. seekers and refugees have the same access to healthcare as nationals of the country In 2015-2016, 5 countries adopted 3 important legislations reforming their they reside in. In 7 countries, they have a 9 less inclusive but extensive access to free national health systems and/or immigration laws10 impacting healthcare. undocumented migrants’ access to Since 2015, 5 states4 adopted major laws healthcare. affecting access to healthcare of asylum Yet, most of the laws restricting access to seekers and refugees. care for undocumented migrants stayed in EU citizens place, as for instance the German law compelling civil servants to report In accordance with Directive 2004/38/CE, undocumented migrants to the immigration EU citizens are considered as authorities. “undocumented” after three months of stay in an EU country without health coverage Pregnant women and sufficient resources. Special provisions are made regarding The care scheme for undocumented third- pregnant women, who are in most states country nationals is not applicable to EU entitled to receive maternity care,

1Belgium (BE), Canada (CA), France (FR), 4 CA, DE, LU, SE, TR Germany (DE), Greece (EL), Ireland (IE), Italy (IT), 5 CH, IE, NL, NO, SI, TR, UK Luxemburg (LU), The Netherlands (NL), Norway 6 Canada and Romania do charge for emergency care (NO), Romania (Ro), Slovenia (SI), Spain (ES), 7 CA, EL (with exceptions since 2016), ES, LU Sweden (SE), Switzerland (CH), Turkey (TR), 8 DE (access undermined by immigration laws), IT, United kingdom (UK) SE 2 CH, ES, EL, FR, IE, NE, NO, TR 9 EL, FR 3 BE, CA, CH, DE, LU, SE, UK 10 CH, TR, UK

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independently of their administrative status. Seriously ill foreigners Indeed, they are considered a vulnerable In cases when treatment is unavailable in group. their country of origin, seriously ill foreigners may benefit from a temporary Pregnant asylum seekers and refugees are 19 entitled to free prenatal and postnatal care protection from expulsion or have the 11 possibility to apply for a temporary and delivery in 13 of the 16 studied states. 20 In the other studied countries, 312 offer residence permit . Yet, this is a possibility some necessary maternity related care but merely in half of the reviewed states. Only not at all stages of the pregnancy. Canada opens the prospect for a permanent residence permit, though numerous Undocumented pregnant women can access conditions have to be fulfilled to obtain it. maternity related care for free only in 813 Prevention and treatment of infectious diseases countries. The availability and gratuity of screening As little as 314 countries provide and treatment for HIV, Hepatitis, termination of pregnancy for all women for Tuberculosis, STIs and blood-borne free. infections varies greatly depending on the country. Migrant children Children of undocumented parents benefit Undocumented migrants can access from a specific status giving them the same screening of some or all infectious diseases access as nationals of the country they in 621 countries only. Treatment is open and reside in or at least an extensive access to free to them in 622 countries as well. healthcare in 915 of the studied states and Conclusion 1116 if they are unaccompanied. In the 817 remaining, they are treated like Thus, despite some efforts made by the undocumented adults and face great states, migrant’s access to healthcare difficulties to access healthcare. remains widely insufficient. Even in countries opening their healthcare system to 618 of the countries distinguish all residents, migrants, especially unaccompanied minors who seek asylum undocumented, face numerous obstacles from those who do not, granting them a undermining their access to care. more extensive access to healthcare. MdM calls on States to offer universal Isolated children in every country face public health systems built on solidarity, distrust from the authorities, who question equality and equity, open to everyone living their minority. In cases of doubt, the on their territory. migrant’s age is often determined through unreliable methods. We hope that this report will be a useful tool to all those working to improve access to healthcare for those facing multiple vulnerabilities.

11 BE, CA, DE, EL, ES, FR, IE, NL, NO, SE, SI 17 CA, CH, LU, NL, NO, SI, TR, UK (only refugees), TR, UK 18 CH, NL, NO, SI, UK 12 SI (asylum seekers), RO 19 in BE, CH, DE, LU, NL, SI 13 BE, DE, ES, EL, FR, IT, RO, SE 20 in DE, ES, FR, IR, LU, NL, NO, SI, TR, UK 14 BE, FR, SE + RO (extension of an existing permit only) 15 BE, DE, EL, ES, FR, IE (until 6 years old.), IT 21 BE, CA, DE, EL, FR, IE (until 14 years old), RO, SE 22 BE, DE, EL, FR, IE, NL 16 BE, CA, FR, EL, ES, IE, IT, LU, SE, RO, UK

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Communal d’Action Acronyms Sociale) FR CDAG Free and anonymous

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

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

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HAS High Authority for Health MOH Ministry of Health RO (Haute Autorité de Santé) MOI Ministry of Interior FR NHIF National Health Insurance HIV Human Immunodeficiency Fund RO Virus NHIH National Health Insurance HTP Health Transformation House RO Programme CH NHS National Health System IE Ireland UK – SE IFHP Interim Federal Health NEF Network of European Program CA Foundations IHC Individual Healthcare Card NIS National Insurance Scheme ES NO IKA Private Employees’ Fund NL Netherlands EL NO Norway INAMI National Institute for OAMal Health Insurance Health and Disability Ordinance CH Insurance (Institut ODSE Observatoire du Droit à la National d’Assurance Santé des Etrangers FR Maladie-Invalidité) BE OGA Farmers’ Fund EL IND Immigration and OLAI Luxembourg Reception Naturalisation Service NL and Integration Agency INSS National Institute of Social (Office luxembourgeois de Security NL l’accueil et de IRB Immigration and Refugee l’intégration) LU Board CA ONSS National Social Security IT Italy Office (Office National de LAMal Federal Law on Sécurité Sociale) BE Compulsory Healthcare OPAD Public Employees’ Fund CH EL LAsi Asylum Law CH PASS Free Medical Centre LETr Federal Act on Foreign (Permanence d’accès aux Nationals CH soins de santé) FR LFIP Law on Foreigners and PCT Primary Care Trust UK International Protection TR PHC Primary healthcare EL LU Luxembourg PICUM Platform for International MARS Doctor from the Regional Cooperation on Health Agency (Médecin Undocumented Migrants de l’ARS) FR PKV Private Health Insurance MdM Doctors of the World (Private (Médecins Krankenversicherung) DE du monde – MdM) PMI Mother and child health MSA Agricultural scheme centre (Protection (Mutualité Sociale maternelle et infantile) FR Agricole) FR

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PRAIDA Regional Programme for TPS Third-party Social the Settlement and Payment (tiers-payant Integration of Asylum social) LU Seekers (Programme TR Turkey Régional d’Accueil et UK The United Kingdom d’Intégration des UKBA United Kingdom Border Demandeurs d’Asile) CA Agency UK PUMA Universal Medical UNCAM National Union of Health Protection (Protection Insurance Funds (Union Maladie Universelle) FR Nationale des Caisses RAMQ Quebec’s health insurance d’Assurance Maladie) FR board (Régie de UNHCR United Nations High l’Assurance Maladie du Commissioner for Québec) CA Refugees RHA Regional Health UNICEF United Nations Authorities NO International Children's RIZIV National Institute for Emergency Fund Health and Disability VRGT The Respiratory Insurance (Rijksinstituut Healthcare and voor ziekte- en Tuberculosis Association invaliditeitsverzekering) (Vereniging voor BE Respiratoire RO Romania Gezondheidszorg en RSI Scheme for the self- Tuberculosebestrijding) employed (Régime Social BE des Indépendants) FR ZZZS Health Insurance Institute SE Sweden of Slovenia SL SI Slovenia SIDEP Integrated services for screening and prevention CA SMR Therapeutic benefit evaluation system (Service Médical Rendu) FR SSI Social Security Institution (Sosyal Güvenlik Kurumu) TR STD Sexually Transmitted Diseases STI Sexually Transmitted Infections TB Tuberculosis TLV Dental and Pharmaceutical Benefits Agency SE

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

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security contributions are deducted BELGIUM automatically from salaries and are paid to the National Social Security Office25. National Health System The details of what is covered by the mandatory health insurance organised by Constitutional basis the National Institute for Health and Article 23 of the Belgian Constitution of Disability Insurance (INAMI (in French) or 1994 establishes that “everyone has the RIZIV (in Dutch)) is determined by a scale right to lead a life in keeping with human (INAMI nomenclature). dignity […]To this end, the laws, federate laws and rules referred to in Article 134 RIZIV-INAMI oversees the general guarantee economic, social and cultural organisation of the compulsory health rights, taking into account corresponding insurance; however, the task of actually obligations, and determine the conditions providing insurance falls to the sickness for exercising them. These rights include funds. These are non-profit organisations among others: the right to social security, with a public interest mission and receive to health care and to social, medical and the majority of their financial resources 26 legal aid” 23. from RIZIV-INAMI .

Organisation and funding of Belgian For the general scheme for employed healthcare system persons, the National Social Security Office (Office National de Sécurité Sociale – Belgium has a complex state structure ONSS) collects and administers payroll which has an impact on the national health taxes and employment taxes. Then, the system. Indeed, health competences are ONSS distributes the contributions between shared between the federal government health insurance companies. These are all (curative care) and federated entities private health insurance companies, called (prevention). “mutualités” (mutuals) or “sickness funds” except for one public health insurance The Belgian health system is based on the company called the Auxiliary Illness and principles of equal access and freedom of Disability Insurance Fund (Caisse choice (health providers, mutuals) for Auxiliaire d’Assurance Maladie-Invalidité individuals with health coverage, with a – CAAMI). The auxiliary fund is available Bismarckian type of compulsory national for people who don’t wish to join one of the health insurance, which covers the whole other mutuals. population and has a very broad benefits 24 package . The mutuals take care of the reimbursement of medical expenses. In practice, for most The national health system consists of a mix medical expenses, patients are only of private and public actors and is funded by responsible for small co-payments for drugs employer and employee contributions, and and transport27. federal government subsidies. Social

23 Constitution of Belgium 1994 (last updated 8 May 25http://belgium.angloinfo.com/money/social- 2007), security/ http://home.scarlet.be/dirkvanheule/compcons/Cons 26 Op. cit. note 24 titutionBelgium/ConstitutionBelgium.htm 27 W. Van Biesen, N. Lameire, P. Peeters, R. 24 S. Gerkens and S. Merkur, “Belgium: Health Vanholder, “Belgium’s mixed private/public health system review”, Health Systems in Transition, vol. care system and its impact on the cost of end-stage 12, No. 5, XVI, 2010, renal disease”, the International Journal of Health http://www.euro.who.int/__data/assets/pdf_file/001 Care Finance and Economics, 2007 4/120425/E94245.PDF https://biblio.ugent.be/publication/519184

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Although there are several health insurance Accessing Belgium healthcare system companies, the social security system Nationals and authorised residents in reimburses them equally for medical Belgium must register with a health services. Competition between mutual insurance company of their choice. They health insurance funds, therefore, is based pay contributions for their membership as on the quality of services provided and on well as a fixed amount established by law their complementary service offer. for the cost of the services. With the law of 26 April 201028, which Nationals and authorised residents must pay came into effect on 1 January 2012, in advance for the medical consultation fees individuals affiliated to one of the mutuals charged by the doctor or hospital. They are obliged to subscribe to supplementary must submit their receipts for activities and services, such as prevention reimbursement and the money is then paid or welfare services, by paying a directly into the claimant’s bank account. In contribution if these services are offered by general, the cost of a GP consultation is the sickness fund (orthodontic treatments, €24.4832. The health insurance company homeopathic care, birth grants, etc.). reimburses €18.48 leaving €6 paid by the Article 67 of the 2010 Law mentions that no patient33. It should be noted that some segmentation of contributions is allowed individuals, depending on their means, pay but there can be differentiation based on less for most medical services34. The local household composition or social status, in public social welfare centre (Centre Public accordance with Article 37 of the Law of 14 d’Action Sociale – CPAS) may also decide July 1994 on compulsory medical care and – in their internal policy – to contribute to sickness benefit insurance29. Moreover, the the medical costs of authorised residents annual contribution may vary from one who are too destitute to pay for important mutual health coverage fund to another, health expenses. from €30 to €25030. To join a health insurance company, a An alternative for destitute people membership application must be submitted (provided they have permission to reside) is to one of the mutuals or the CAAMI. Being to be affiliated to the CAAMI, which costs private organisations, the mutuals may €2.25 per year for the head of the family refuse membership to an applicant. The (dependent family members pay nothing). public fund, however, may not refuse The CAAMI provides access to all services membership to an applicant. This covered by the RIZIV-INAMI guarantees the availability of health nomenclature, but not to any supplementary insurance to all Belgians. The individual is services31. bound by their choice of mutual or the CAAMI for a one-year period. Obviously, one advantage is that if affiliated members become undocumented, they keep their

28Law of 26 April 2010, January 2012, http://plusmagazine.levif.be/fr/011- http://www.ejustice.just.fgov.be/cgi_loi/change_lg. 1548-La-cotisation-de-mutuelle-est- pl?language=fr&la=F&cn=2010042607&table_na desormaisobligatoire.html me=loi 31http://www.caami-hziv.fgov.be/tarieven-artsen- 29Law of 14 July 1994, F.htm http://www.ejustice.just.fgov.be/cgi_loi/change_lg. 32http://www.riziv.fgov.be/SiteCollectionDocument pl?language=fr&la=F&cn=1994071438&table_na s/tarif_medecins_partie01_20160201.pdf me=loi 33 Op. cit. note 31 30 L. Baekelandt, « La cotisation de mutuelle est 34http://www.belgium.be/fr/sante/cout_des_soins/re désormais obligatoire », Plusmagazine.be, 26 mboursements_specifiques/

 Page 14 BELGIUM healthcare coverage for up to a year after but not applicable to asylum seekers their last payment. Dependent children are because these services are not bound by their parents’ choice. considered as necessary in order to lead a life in conditions of human The contents of the mandatory health dignity (orthodontics, infertility insurance organised by RIZIV-INAMI is treatment, etc.) determined by the RIZIV-INAMI  Healthcare services which are not 35 nomenclature , which lists over 8,000 listed in the RIZIV-INAMI partially or totally reimbursable services. nomenclature but are granted to RIZIV-INAMI contributes to the cost of asylum seekers as they are part of medication to different degrees, according daily life (certain Category D drugs, to medical necessity (the degree of glasses for children, etc.). seriousness of the pathology in the absence 36 of treatment) and has also frozen the Asylum seekers living in a reception centre prices of essential drugs. Thus, six are also entitled to free medical services not 37 categories of drugs have been defined . included in the INAMI nomenclature but which are needed in everyday life. These Access to healthcare for migrants services are listed in the royal decree of 9 April 200740 and include: Asylum seekers, refugees and those eligible for subsidiary protection38  Orthodontics  Investigation and treatment of The 2007 law on the reception of asylum infertility seekers and other categories of foreign  Dentures, when there is no chewing nationals and stateless people39 defines the problem entitlement of asylum seekers to medical  Cosmetic procedures, except care. According to this law, all asylum reconstruction after surgery or trauma seekers are entitled free of charge to health  Dental care under general anaesthesia services in order to guarantee them a life in conditions of human dignity. Access to It is to be noted that the CPAS hosting healthcare services is based on the RIZIV- asylum seekers are only reimbursed for INAMI nomenclature with two exceptions: medical care following the nomenclature,  Healthcare services which are listed in the RIZIV-INAMI nomenclature

35http://www.inami.fgov.be/fr/nomenclature/nomen cost of D medication, whatever aid mechanism they clature/Pages/default.aspx#.VL5oNkeG_94 benefit from. 36 I. Cleemput and al., « Détermination du ticket 38 Anyone who is not entitled, does not respond, modérateur en fonction de la valeur sociétale de la according to the Belgian asylum authorities, to prestation ou du produit », Health Services Research asylum in the refugee definition may nevertheless be (HSR), Bruxelles : Centre Fédéral d’Expertise des eligible for subsidiary protection if he/she is actually Soins de Santé (KCE), KCE Report 186BS, 2012. exposed to serious threats if he/she returned to their https://kce.fgov.be/sites/default/files/page_docume country of origin. nts/KCE_186B_determination_ticket_moderateur_s 39 Law on the reception of asylum seekers and other ynthese_second_print_0.pdf categories of foreign nationals and stateless people 37 Category A: drugs of vital importance (cancer or – 2007 diabetes treatment); category B: therapy treatment http://www.ejustice.just.fgov.be/cgi_loi/change_lg. (antibiotics); category C: drugs with symptoms pl?language=fr&la=F&cn=2007011252&table_na effects; category Cs: vaccine against flu; category me=loi Cx: contraceptives; category D: drugs considered 40Royal decree of 9 April 2007 not “essential” and consequently not reimbursable http://www.ejustice.just.fgov.be/cgi_loi/change_lg. such as vitamins, but also paracetamol. All patients, pl?language=fr&la=F&cn=2007040946&table_na including those on a low income, must pay the full me=loi

 Page 15 BELGIUM thus, medical care not included in it will not Children of asylum seekers and refugees 41 be reimbursed to the CPAS . Children of asylum seekers and children of While living in a reception centre, asylum refugees have access to the same healthcare seekers’ medical expenses are normally as adult asylum seekers, but also to covered by Fedasil or one of its reception vaccinations as authorised residents under partners. If they don’t live in a centre (“no the RIZIV-INAMI scheme. shows”)42, they must obtain a “payment Undocumented migrants warranty” (“réquisitoire”) before they can receive care and treatment without having In Belgium, undocumented migrants have to pay. If they do not obtain this “payment access to healthcare through the Urgent warranty”, the doctor must attach a Medical Aid (Aide Médicale Urgente – certificate to their bill, to prove that the AMU) specified in the Royal Decree of 12 treatment was necessary. The December 1996 relating to “urgent medical administrative procedure is quite assistance granted by the CPAS to foreign complicated and many healthcare providers nationals residing in Belgium illegally”47. are unfamiliar with it. Despite its name, AMU covers both preventive and curative care, and Individuals who go through the asylum individuals entitled to this medical coverage procedure and obtain protection in Belgium must be granted access to health services under the UN Refugee Convention of 1951 beyond emergency care. are described as “recognised refugees”43. They receive a Certificate of Inscription in Obtaining AMU48 is subject to four the Register of Foreign Nationals conditions. The individual must: (Certificat d’Inscription au Registre des Étrangers – CIRE) which remains valid for  Be an undocumented migrant one year and is renewable on request44. The  Obtain a medical certificate proving CIRE gives them entitlement to health health needs signed by a doctor; insurance under the RIZIV-INAMI  Prove their place of residence in a scheme45. municipality;  Prove their lack of financial resources After four months since the beginning of the through a mandatory social inquiry asylum procedure, asylum seekers have the from the CPAS. right to work. If they do, they can join a health insurance46. The CPAS must check whether the claimant is undocumented, regardless of how they Pregnant asylum seekers and refugees entered Belgium. The claimant is asked Pregnant women seeking asylum or who many questions: on arrival conditions have obtained refugee status have access to (illegally, visa, etc.) and on administrative antenatal, delivery and postnatal care as formalities in Belgium (request for authorised residents. They also have access regularisation, asylum, etc.). Questions may to free termination of pregnancy within the vary considerably from one CPAS to legal period (up to 12 weeks). another.

41http://www.medimmigrant.be/?idbericht=24&idm 45 Op. cit. note 39 enu=2&lang=fr 46 Op. cit. note 41 42 Asylum seekers who are not living in a reception 47Royal Decree of 12 December 1996, structure are called “no shows”. http://www.miis.be/sites/default/files/doc/KB%201 43http://www.medimmigrant.be/index.asp?idbericht 996-12-12.pdf =193&idmenu=2&lang=fr 48http://www.medimmigrant.be/?idbericht=50&idm 44 Ibid. enu=3&lang=fr

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The circular of 25 March 201049 on the constitutes sufficient evidence of place of social investigation required for the residence52. reimbursement of medical charges specifies that each CPAS must understand how it can In practice, this freedom concerning establish the destitute situation of the assessment at the discretion of each CPAS claimant. On this point, the law is not seems to be a source of insecurity for sufficiently precise and leaves room for applicants, as there is no visibility arbitrary treatment. concerning the criteria used to assess their situation. It also means that these criteria are In addition, the Law of 30 December different depending on where in Belgium 200950, states that in the case of AMU undocumented migrants live. requests, social investigations must be systematic. These provisions added the This mandatory social investigation is very following subsection to Article 11 Section 1 intrusive in the claimant’s life and in the life of 2 April 1965 on the funding of healthcare of those who host them. It often prevents provided by the CPAS: “the reimbursement individuals entitled to the AMU from of the charges specified in the submitting a request to benefit from it. aforementioned Article 4 may only be made Furthermore, for example, a CPAS, such as if a social investigation carried out the one in Antwerp, can often refuse AMU beforehand certifies the existence and due to applicants’ alleged refusal to extent of the need for social assistance51”. collaborate with the social investigation. During the home visit, the CPAS If all these conditions are fulfilled, the representative requests personal claimant may benefit from healthcare documents, such as the lease, rent receipts, coverage (AMU). The parameters of this invoices and certificate from cohabitants, coverage, such as the period for which etc. The circular notes that the CPAS may AMU is granted (ranging from one conduct its investigation by the means it consultation to one year for chronically ill judges appropriate. An important barrier to patients), which (local) healthcare providers accessing healthcare is that the social can be consulted and how to ask a investigation can take up to a month (as healthcare provider for care or treatment are 53 defined by law). Health problems might defined by the specific CPAS concerned . become more serious after such a long Overall, once an undocumented migrant is period of time. entitled to AMU, their healthcare expenses Moreover, many undocumented migrants will be directly reimbursed to health have difficulty proving their “place of professionals by the CPAS or the federal residence”, particularly if they are staying authorities, except for those which do not with friends, in churches, in shelters or are have a RIZIV-INAMI nomenclature code. homeless. Often considerable discretion is Healthcare providers can refuse to treat an exercised at local level to decide what undocumented migrant who has a medical card granted from a CPAS in another

49Circular of 25 March 2010, 52 European Union Agency for Fundamental Rights http://www.ejustice.just.fgov.be/cgi/api2.pl?lg=fr& (FRA), Migrants in an irregular situation: access to pd=2010-05-06&numac=2010011203 healthcare in 10 European Union Member States, 50Law of 30 December 2009 Luxembourg, 2011. http://www.ejustice.just.fgov.be/cgi_loi/change_lg. 53https://kce.fgov.be/sites/default/files/page_docum pl?language=fr&la=F&cn=2009123001&table_na ents/KCE__257B_Soins_de_sante_migrants_Synth me=loi ese.pdf 51 Ibid.

 Page 17 BELGIUM region, because the CPAS might not extremely restrictive in its interpretation of reimburse the costs of care54. If a person national law. makes an appointment with a doctor before receiving the certificate from the CPAS However, since May 2012, a platform of they must pay for the appointment local healthcare workers and organisations, themselves and the CPAS often refuses to migrant and medical NGOs as Doctors of reimburse the costs because it did not agree the World – Médecins du Monde (MdM), as to the appointment and had not yet granted well as academics, has negotiated a AMU. Some CPAS collaborate with partnership with this local welfare centre, in doctors or put in place a system with a first order to ensure that all pregnant women get free consultation in order to make the early access to antenatal care. As a result, process easier for patients but others do not the welfare centre has designated two make such an effort55. contact persons who should be able to provide antenatal and postnatal welfare Undocumented pregnant women follow-up for undocumented women. As mentioned above, the Royal decree With regard to pregnancy termination, this refers to “urgent care”, a term that might is a service covered by AMU. However, well be misleading as the AMU pregnant women must respect the legal encompasses a broad range of preventive, period of 12 weeks of pregnancy for primary and secondary health services, termination, even though the CPAS including maternal care. response to the AMU application usually 56 Undocumented pregnant women must have comes one month later . In practice, full free access to antenatal and postnatal between the pregnancy being certified and care as authorised residents if they have AMU being granted, those 12 weeks have obtained AMU. However, the same barriers already passed. apply for pregnant women and children as Therefore, pregnant women usually prefer for other AMU claimants. to try and find the money for the termination Postnatal follow-up care is financed and and pay it directly to the practitioner, whereas they should be covered by the organised by the federated entities: the 57 Birth and Childhood Offices (the Office de AMU scheme . la Naissance et de l’Enfance and the Kind If they succeed in being covered by AMU, en Gezin). Access to Community-financed they pay €1.72 for the preliminary postnatal consultations is free of charge for examination and €1.72 for the medical all women, even without AMU coverage. procedure. For pregnant women who do not Certain CPAS, often due to unwillingness have health coverage, termination of or lack of awareness, impede access to pregnancy costs €460. health services for undocumented migrants, Children of undocumented migrants including pregnant women, refusing to grant AMU. For instance, the social welfare The Royal Decree of 12 December 1996 centre of Antwerp, the country’s second includes children in AMU. They are entitled biggest city, has for many years been to the same healthcare as undocumented

54 Ibid. http://files.nowhereland.info/706.pdf 55Platform for International Cooperation on 56http://www.viefeminine.be/spip.php?article2701 Undocumented Migrants (PICUM), Undocumented 57INAMI, Kluwer a Wolters Kluwer Business, Migrants’ Health Needs and Strategies to Access Médecins du Monde, Livre vert sur l’accès aux soins Health Care in 17 EU countries, Country Report en Belgique, Waterloo, 2014. Belgium, June 2010,

 Page 18 BELGIUM adults. They must obtain AMU in order to residence, to grant maintenance gain access to curative healthcare. assistance.” This legal provision came into force in February 2012. As regards preventive healthcare, everyone has free access to vaccinations through the However, on 30 June 201460, the Birth and Childhood Office (the Office de la Constitutional Court of Belgium ruled that Naissance et de l’Enfance and the Kind en Article 12 of the Law of 19 January 2012 Gezin. but only until the age of six. After the breaches Article 10 and 11 of the age of six, they must obtain AMU like Constitution in that it allows CPAS to adults for all curative and preventive care. refuse AMU to EU citizens during the first three months of their stay in Belgium. EU citizens Indeed, this measure creates a difference of France and Belgium are the only member treatment which is discriminatory to EU states to include – under strict conditions – citizens and their family members, since destitute EU migrants in their healthcare they cannot claim for AMU to CPAS, system for undocumented migrants. Yet for whereas extra-European undocumented many CPAS, this right remains merely migrants in Belgium can benefit from theoretical, as EU citizens are faced with AMU. This judgment is directly binding several administrative barriers. and so partially abolished the interpretation of Article 57quinquies of the Law of 8 July The Law of 19 January 201258 confirmed 1976 modified by the Law of 19 January the practices of a majority of CPAS: access 2012. to healthcare for destitute EU migrants was 61 restricted. This law, modifying legislation Since then, a circular of 5 August 2014 relating to the reception of asylum seekers, has been adopted in order to warn CPAS adds Article 57quinquies to the Organic presidents about the new interpretation of Law of 8 July 197659 relating to CPAS Article 57quinquies. centres, according to which: The Constitutional Court considers that “Notwithstanding the provision of this law, Article 57quinquies must be read as the centre is not obliged to provide social follows: assistance to European Union Member  Persons who fall within the scope of State nationals or members of their families this article are not precluded from the during the first three months of their stay or, right to AMU; if applicable, during the longer period  EU citizens residing in Belgium, provided for in Article 40, Section 4, whether or not they are employed, are Subsection 1, of the law of 15 December not temporarily precluded from the 1980 on access to the territory, residence, right to social aid. establishment and return of foreign nationals, neither is it obliged, prior to the acquisition of the right of permanent

58 Law of 19 January 2012 http://www.const-court.be/public/f/2014/2014- http://www.ejustice.just.fgov.be/cgi_loi/change_lg. 095f.pdf pl?language=fr&la=F&table_name=loi&cn=20120 61Circular of 5 August 2014, 11913 http://www.ejustice.just.fgov.be/cgi_loi/loi_a1.pl?s 59 Law of 8 July 1976, ql=%28text%20contains%20%28%27%27%29%29 http://www.ejustice.just.fgov.be/cgi_loi/change_lg. &language=fr&rech=1&tri=dd%20AS%20RANK pl?language=fr&la=F&cn=1976070801&table_na &value=&table_name=loi&F=&cn=2014080501& me=loi caller=image_a1&fromtab=loi&la=F 60 Judgement of the Constitutional Court, 30 June 2014,

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Therefore, in the light of this judgment, EU to “nationals of European Economic Area migrants in Belgium must have access to (EEA) countries”. AMU during the first three months of their stay. Thus, whether the unaccompanied minors are EU citizens or not, they have the same So, pregnant women and children who are protection under Belgian law. Article 10§1 EU citizens should have access to AMU as of the Law of 24 December 2014 states that other undocumented migrants. As discussed “the guardian ensures that the minor goes above, undocumented migrants are already to school and receives psychological facing issues in accessing AMU. Thus, it support and appropriate medical care”. seems to be very complicated for pregnant women to gain access to antenatal and Therefore, unaccompanied minors have postnatal care and for children to gain access to healthcare under the RIZIV- access to vaccination after the age of six. INAMI scheme. Access to termination of pregnancy for Moreover, the 25 July 2008 circular pregnant EU women seems nearly determines the conditions for access to impossible. For the first three months of health coverage for third-country their stay they are considered as tourists: unaccompanied minors (and, since 2014, they exceed the legal period of 12 weeks for unaccompanied minors from an EEA and then do not have access to termination. country): Their only option is to travel to the  Going to school for three consecutive Netherlands, where the legal period for months at an educational pregnancy termination is set at 24 weeks, if establishment recognised by a the woman is in distress, and pays for a Belgian authority; termination out of her pocket.  Being registered at a Birth and Unaccompanied minors Childhood Office or registered at an establishment of preschool education; Initially, the law made a distinction between  The minor is not required to go to unaccompanied EU minors and school by the competent regional unaccompanied minors from non-EU service. countries. The protection granted to third- country-national unaccompanied minors Consequently, unaccompanied minors, was much greater than that for especially older ones have to wait three unaccompanied EU minors. months before accessing healthcare.

As a result of the Constitutional Court’s Protection of seriously ill foreign judgment of 18 July 2013, the law of 12 May 201462 was adopted and modified the nationals Programme Law of 24 December 200263. In Belgium, by law, seriously ill foreign This law added a new Article 5/1 without nationals benefit from special protection prejudice to Article 5 of the Programme which prevents the authorities from Law providing for the guardianship of expelling them to their country of origin or third-country unaccompanied minors. the country where they are resident. Article 5/1 provides that the guardianship referred to in Article 3, §1st, al 1st shall apply

62 Law of 12 May 2014, 63 Programme Law of 24 December 2002, http://www.ejustice.just.fgov.be/cgi_loi/change_lg.p http://www.ejustice.just.fgov.be/cgi_loi/change_lg. l?language=fr&la=F&table_name=loi&cn=20021 pl?language=fr&la=F&cn=2002122445&table_na 22445 me=loi

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Indeed, according Article 9ter of the Law of If the application is deemed complete, 15 December 1980 on access to Belgium, passes the medical filter and the residential residence, establishment and return of investigation conducted by the municipality foreign nationals64, “a foreign national is positive (it means that homeless people residing in Belgium who proves his/her cannot apply for 9ter) the Immigration identity in accordance with §2 and who Office declares Article 9ter admissible and suffers from a disease which causes a real issues a certificate of registration, known as risk to his/her life or physical integrity or a an “Orange Card” for three months. This real risk of inhuman or degrading treatment certificate can be renewed three times for a if there is no adequate treatment in his/her further three months and then every month country of origin or in the country where until a substantive decision is taken by the s/he stays can request a residence permit Immigration Office. This card does not for Belgium from the Minister or his/her entitle the holder to access a health representative (…) The foreign national insurance fund or employment. However, delivers with the applications all relevant the holder can request AMU from the CPAS and recent information regarding his/her of their place of residence65. illness and the possibility of and access to adequate treatment in his/her country of The substantive decision origin or in the country where s/he stays”. The Immigration Office examines whether 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 admissibility of the application the availability but also the accessibility of the treatment. If the administration and the A representative of the Immigration Office medical officer judge that the treatment is (Office des étrangers/ not available or not accessible, a one-year Vreemdelingenzaken) examines whether residence permit is granted. the formal requirements for the submission of the application are met (proof of identity, In practice, the Immigration Office bases its medical certificate issued less than three decision on the degree of severity of the months ago clearly indicating the condition, illness. The foreign national must be its severity and estimated treatment needed, extremely ill to be granted a one-year etc.). Once the request has been submitted, residence permit under Article 9ter. This the medical officer of the Immigration residence permit enables the holder to join Office is responsible, since the introduction a health insurance fund, to access the labour of a medical filter in February 2012, for market and to benefit from social assistance assessing whether the illness is serious from the CPAS if they are destitute. enough. If the condition clearly does not Alternatively, the individual will be issued meet the threshold of gravity, that is to say, with a reasoned negative decision and an it does not cause a real risk to life or order to leave Belgium. The individual can physical integrity or risk of inhuman or appeal the decision to the Council for degrading treatment, the application of Foreigners Law Litigation (Conseil du Article 9ter may be declared inadmissible. Contentieux des Etrangers)66.

64 Law of 15 December 1980, 65http://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_na 66 Op. cit. note 65 me=loi

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In the judgment of the Court of Justice of Prevention and treatment of the European Union (Grand Chamber) of 18 infectious diseases December 201467, the Court rules that Article 9ter of the Law of 15 December The Royal Decree of 1 March 197168 on the 1980 violates Directive 2008/115/EC of the prevention of contagious diseases covers European Parliament and of the Council of the list of notifiable diseases on Belgian 16 December 2008 on common standards territory. and procedures in Member States for returning illegally staying third-country The Respiratory Diseases Fund (Fonds des nationals. Affections Respiratoires – FARES) and the Respiratory Healthcare and Tuberculosis Indeed, Article 9ter violates the Directive Association (Vereniging voor Respiratoire because it does not grant a suspensive effect Gezondheidszorg en to the appeal against a negative decision Tuberculosebestrijding – VRGT) offer free which orders a seriously ill third-country screening for tuberculosis to all those who national to leave the territory of a Member request it (without taking into account State, when the execution of the decision residence status) and provide free treatment may expose the third-country national to a and follow-up in the case of a positive substantial risk of serious and irreversible result. damage to their health; and because the law does not provide, as far as possible, the A number of referral centres offer Sexually support of basic needs to the third-country Transmitted Infections (STI) screening national in order to ensure that emergency upon request. Although screening is free medical care and essential treatment of (and anonymous) for anyone without diseases can be effectively provided during medical insurance, these centres are obliged the period in which the Member State shall to check systematically whether the patient postpone the expulsion of the same third- has medical insurance, which is an country national following the appeal of the additional threshold. decision. Furthermore, most of these referral centres Thus, since this judgment, the appeal cannot guarantee the provision of treatment against a negative decision from the if the individual does not have access to Immigration Office is suspensive. It means healthcare. Concerning AMU, the regular that seriously ill foreign nationals who barriers apply: being able to provide a appeal the decision must still benefit from residential address and all the possible AMU and can stay in Belgium during the documents a CPAS might demand during appeal. its social investigation, etc. In recent years, the MdM Antwerp team and their partners have observed undocumented pregnant women who have failed to overcome these hurdles, despite having a chronic illness

67Centre public d’action sociale d’Ottignies- http://curia.europa.eu/juris/celex.jsf?celex=62013C Louvain-la-Neuve v Moussa Abdida, 18 December J0562&lang1=fr&type=TXT&ancre 2014, Judgement of the Court of Justice of the 68Royal decree of 1 march 1971 European Union (Grand Chamber), http://www.gallilex.cfwb.be/document/pdf/24713_0 00.pdf

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provinces and territories and fulfil several CANADA (QUEBEC) other functions, including financing and providing primary and supplementary National Health System services to certain groups of people. These groups include First Nations people living Organisation and funding of Canadian on reserves, Inuit, Canadian Armed Forces, healthcare system eligible veterans, inmates in federal penitentiaries and some refugee groups of Healthcare in Canada is a publicly funded applicants71. system, unofficially called “Medicare”. It is guided by the Canada Health Act of 198469, Instead of having a single national plan, but largely determined by the Constitution Canada’s healthcare programme is made up of Canada in which roles and of provincial and territorial health insurance responsibilities are divided between the plans, all of which share certain common federal, provincial and territorial features and standards such as “their governments. universality and their accessibility”72.

This is a mixed public-private system that Accessing Canada healthcare system provides health coverage to all Canadian citizens and permanent residents (some To be covered by Canada’s healthcare provinces such as Quebec enforce a waiting system involves first applying for a time of three months for newly arrived provincial health insurance card. The permanent residents). Indeed, almost all Canada Health Act requires all residents of healthcare services are delivered by the a province or territory to be accepted for private sector and the public sector is health coverage, excluding prison inmates, responsible for financing those services. the Canadian Armed Forces and certain members of the Royal Canadian Mounted Publicly funded healthcare is financed with Police73. general revenue raised at federal, provincial and territorial levels70. The federal Thus, new residents in a particular province government provides funding to provinces must apply for health coverage. Upon being and territories for healthcare services granted it, a health card is issued which through fiscal transfers via the Canadian provides health coverage in that particular Health and Social Transfer (CHST). province or territory74. Transfer payments are made as a combination of tax transfers and cash However, the main constraint for new contributions from the government. residents is the waiting period that generally takes three months75 before health coverage The federal government’s role in healthcare will be granted. Thus, during this waiting is to establish and implement national period, new residents have to pay out of principles for the system under the Canada pocket to have access to healthcare, even for Health Act to provide financial support to emergency care (some exceptions apply;

69 Health Act – 1984 74 Ibid. http://laws-lois.justice.gc.ca/eng/acts/c- 75 This period varies according to the beneficiary. 6/fulltext.html There are exceptions to the application of this 70 http://www.hc-sc.gc.ca/index-eng.php waiting period for services related to pregnancy, 71http://www.hc-sc.gc.ca/hcs-sss/pubs/system- delivery, termination of pregnancy; necessary regime/2011-hcs-sss/index-eng.php services to victims of domestic or family violence, 72http://www.cic.gc.ca/english/newcomers/after- or sexual assault; services needed by individuals health.asp with infectious diseases that affect public health. 73 http://www.canadian-healthcare.org/

 Page 23 CANADA antenatal care, for example in the Quebec The public health insurance plan aims to province, is covered during the waiting deliver free medical services in public period). hospitals and local community service centres to RAMQ’s beneficiaries. Under the healthcare system, citizens and Individuals covered by public health permanent residents are provided with insurance have to present their health preventive care and medical treatments insurance card to benefit from free from primary care physicians, as well as coverage. If a person with health coverage with access to hospitals and additional does not present their health insurance card medical services76. In addition to standard or if the card has expired, they must pay for health coverage as described in the Canada the healthcare services they receive and Health Act, provinces may provide then apply to Quebec’s health insurance additional services which can include board for a reimbursement. physiotherapy care, dental care and some medicines77. The province of Quebec does People arriving from another province to not provide dental care nor vision care take up residence in Quebec become except to certain groups of the population, eligible for the Quebec Health Insurance mainly beneficiaries of last resort social Plan when they cease to be covered by the 81 assistance schemes. plan of their province of origin . As authorised residents settling in Quebec, Most provincial and territorial governments nationals have to wait three months during offer and fund supplementary benefits for which they can benefit freely from some certain groups, especially low-income services. 78 residents, such as drugs prescribed outside For as long as they remain covered by the hospitals, ambulance costs, and hearing, health insurance plan of their former vision and dental care that are not covered 79 province, they must present their health under the Canada Health Act . insurance card from that province when receiving healthcare from a doctor in Accessing Quebec healthcare system Quebec82. The health insurance plan of their In order to ensure free access to healthcare former province will cover the costs. in Quebec, the provincial government However, if the Quebec doctor does not created Quebec’s health insurance board accept that card, they will have to pay the doctor’s fees and then apply for a refund (Régie de l’Assurance Maladie du Québec – RAMQ). The government’s goal was to with the organisation administering the respond to the needs of its citizens and health insurance plan of their province of residents, and implement its own health and origin83. In Quebec, a general practitioner’s social welfare policies in line with the spirit consultation fees vary from €50 to €400. of the federal policies80. Indeed, GPs have the discretion to charge any amount for their services. Often, the fee Quebec’s health insurance board is a lot higher for people not covered by the administrates the public health and RAMQ. prescription drug insurance plans. If an individual is covered by public or private health insurance, they do not pay

76 Op. Cit. note 73 80http://www.ramq.gouv.qc.ca/en/regie/Pages/missi 77 Op. Cit. note 73 on.aspx 78 Op. cit. note 71 81 Ibid. 79 Op. cit. note 71 82 Op. cit. note 80 83 Op. cit. note 80

 Page 24 CANADA doctor’s fees in advance. Instead, the doctor 2017)85, whether or not they purchase charges Quebec’s health insurance board prescription drugs86. directly. However, if an individual has no health coverage, s/he has to pay doctor’s Certain people covered by the public health fees. coverage plan do not pay a premium. These include: The prescription drug insurance plan has been compulsory for everyone in Quebec  individuals aged 65 or over receiving since 1997. Indeed, they must be covered by 94% to 100% Guaranteed Income prescription drug insurance, either through Supplement (GIS)87; the public plan or by private plans84.  holders of a claim slip and their children under the age of 1888; The private plans are usually available in  new-born children whose parents are the form of group insurance or employee covered by the public plan. benefit plans. Individuals may be eligible for a private plan through employment, Access to healthcare for migrants membership of a professional order or association, their spouse or parents. Asylum seekers and refugees Individuals admissible to a private plan have to join a private insurance. Anyone Individuals who are Quebec residents and who is not eligible for private plans has to who have been granted refugee status are join the public plan administered by qualified for RAMQ and thus have the same Quebec’s health insurance board. access to healthcare as nationals and authorised residents89. People insured with a private plan must pay On the national level, refugees and asylum a premium, whether or not they purchase seekers are covered by the Interim Federal prescription drugs. In most cases, they pay Health Program. the premium in the form of regular payroll deductions throughout the year. Interim Federal Health Program (IFHP) The primary purpose of this programme is Generally speaking, people covered by the to provide limited, temporary coverage of public plan must pay a premium (between health-care costs for specific groups of €0 and €660 from 1 July 2016 to 30 June people90, such as protected persons91,

84 Op. cit. note 80 covered by the claim slip, which includes drugs, 85http://www.ramq.gouv.qc.ca/en/citizens/prescripti optometric services, dental services and acrylic on-drug-insurance/Pages/annual-premium.aspx dentures, are not accessible to asylum seekers 86http://www.ramq.gouv.qc.ca/en/citizens/prescripti because they have no access to the RAMQ services. on-drug-insurance/Pages/annual-premium.aspx A claim slip may also be issued to people whose 87 The Guaranteed Income Supplement (GIS) is an income exceeds the amount of recognized needs, but amount added to the Old Age Security Pension is insufficient to cover the drugs they need (OASP) and is paid at the same time as that pension http://www.mess.gouv.qc.ca/regles-normatives/b- to certain people age 65 or over. A person may aides-financieres/05-prestations- receive the maximum GIS (100%), a partial GIS or speciales/05.01.05.html no GIS (0%), depending on the family income. In 89http://www.cic.gc.ca/english/refugees/outside/arri each case, the contribution to the public plan differs ving-healthcare/individuals/apply-who.asp (GIS). 90http://www.cic.gc.ca/english/information/applicati 88This specific benefit is delivered to the beneficiary ons/guides/5568ETOC.asp#5568E2 of a claim slip renewable every month. The 91Immigration and Refugee Protection Act, 2001, beneficiary can obtain the prescription drugs that section 95(2): “A protected person is a person on he/she or his/her family needs, presenting this diary whom refugee protection is conferred under to a pharmacist of his/her choice. Specific benefits subsection (1), and whose claim or application has

 Page 25 CANADA asylum seekers, rejected refugee claimants therapists, speech language before their expulsion date92, etc. therapists, physiotherapists  assistive devices, medical supplies For the following groups of beneficiaries, and equipment the IFHP also covers the cost of one Immigration Medical Exam (IME): asylum IFHP also covers most prescription seekers, ineligible refugee claimants, medications and other products listed on victims of human trafficking, and detainees. provincial/territorial public drug plan formularies and, for most categories of The Minister of Immigration, Refugees and beneficiaries, the cost of one Immigration Citizenship has discretion to provide full or Medical Exam and IME-related diagnostic partial coverage of health-care costs to tests required under the Immigration individuals not eligible for IFHP coverage Refugee Protection Act. who face exceptional circumstances93. The benefits covered by the IFHP are On 1 April 2016, the IFHP was restored to limited to maximum amounts per service95. pre-2012 levels of coverage for all beneficiaries, which are similar to health- As for the duration of the coverage, for care coverage provided by health insurance asylum seekers, basic, supplemental and plans in Quebec94. prescription drug coverage continues until the beneficiary withdraws his asylum claim Basic coverage includes: or becomes eligible for provincial or  in-patient and out-patient hospital territorial health insurance or, if the services application for asylum is refused, until the  services provided by medical doctors, applicant’s deportation date. For refugees, registered nurses and other health- basic, supplemental and prescription drug care professionals licensed in Canada, coverage is provided for 90 days from the including pre- and post-natal care date the asylum claim or PRRA is accepted,  laboratory, diagnostic and ambulance or until they become eligible for provincial 96 services or territorial health insurance . Since 10 April 2016, the former twelve Supplemental coverage includes: month expiry date on coverage for refugee claimants has been eliminated.  limited dental and vision care Consequently, individuals eligible to be  home care and long-term care referred to the Immigration and Refugee  services provided by allied health- Board (IRB) as a refugee claimant or whose care practitioners including clinical claim has been found ineligible to be psychologists, occupational referred to the IRB but who are eligible to apply for a pre-removal risk assessment,

not subsequently been deemed to be rejected under http://www.cic.gc.ca/english/department/laws- subsection 108(3), 109(3) or 114(4)”. policy/ifhp.asp http://laws-lois.justice.gc.ca/eng/acts/I-2.5/ 93 Ibid. 92It means a person whose claim for refugee 94http://www.cic.gc.ca/english/refugees/outside/su protection has been finally rejected by the mmary-ifhp.asp Immigration Refugee Board and whose right to 95IFHP benefit grids judicial review, or any appeal of that judicial review, https://www.medavie.bluecross.ca/cs/ContentServe in respect of that claim has been exhausted; or whose r?c=ContentPage_P&pagename=MedavieCorporate claim is deemed to be rejected under subsections %2FContentPage_P%2FSplash&cid=11872198604 105(3), 108(3) or 109(3) of the Immigration and 33c Refugee Protection Act. 96 Op. cit. note 89

 Page 26 CANADA will no longer need to apply to extend their hospitals refuse to treat individuals with a coverage every 12 months97. valid IFHP or require payment in advance. The 2016 IFHP policy which started its Pregnant asylum seekers implementation on 1 April 2016 also Pregnant women seeking asylum are provides that, starting no later than 1 April entitled to the IFHP which covers prenatal 2017 refugees destined to Canada for care, the delivery of the child and postnatal resettlement will also be eligible, prior to care. arrival, for coverage of pre-departure medical services, including immigration Children of asylum seekers medical examinations and follow-up treatment of health conditions that would Children eligible for the IFHP who are less make an individual inadmissible to Canada than 19 years old or older and unable to be under paragraph 38(1)(a) of financially self-sufficient due to a physical the Immigration and Refugee Protection or mental condition, are entitled to the same Act98, communicable disease prevention health coverage as adult asylum seekers. and control (vaccinations), outbreak This coverage includes vaccination. management and control, and medical In Quebec, children under 10 whose parents support required during transit for safe are resettled refugees are entitled to the 99 travel . same dental services as Quebec children, 100 It should be noted that, in theory, the IFHP through RAMQ . beneficiaries do not have to pay for medical Previous reforms consultations in advance. In practice, medical doctors usually make them pay IFHP reforms background because the reimbursement process is On 30 June 2012, changes were applied to particularly complex or because they are not the IFHP by the federal government, which aware of the recent reform. considerably limited access to healthcare 101 IFHP beneficiaries who pay doctor’s fees in for groups concerned by the IFHP . advance, contrary to RAMQ beneficiaries This reform impacted in particular rejected who can be reimbursed by the government refugee claimants and refugee claimants if they forget their health card, cannot be from designated “safe” countries of origin reimbursed if they forgot their IFHP (DCO)102, including those whose initial document or if it has expired. claims have been rejected and still had In general, asylum seekers have to deal with appeal options. They were not eligible to many issues regarding access to healthcare basic healthcare, including emergency 103 even if they are eligible for the IFHP. care . They only had access to healthcare Indeed, it often happens that doctors and or medications if these were required to

97http://www.cic.gc.ca/english/refugees/outside/arri 102List of countries ving-healthcare/individuals/treatment.asp http://www.cic.gc.ca/english/refugees/reform- 98 Op. cit. note 91 safe.asp 99 Op. cit. note 92 103L. Samson and C. Hui, “Cuts to refugee health 100http://refugeehealth.ca/sites/default/files/IFHP.pd program put children and youth at risk”, Canadian f Paediatric Society, 2012, 101 R. Goel, “Federal reversal of refugee health cuts http://www.cps.ca/advocacy/CPS_RefugeeHealth.p still leaves many uncovered”, Health Debate, 2014, df http://healthydebate.ca/opinions/reversal-of- refugee-health-cuts

 Page 27 CANADA prevent or treat a disease posing a risk to Bill C-31108 104 public health . Bill C-31 is an Act to amend the Protecting However, some people could be granted Canada’s Immigration System Act that was special dispensation for health services at introduced in the House of Commons on 16 the discretion of the Immigration Minister February 2012. Asylum seekers whose 105, in very rare and exceptional claims for protection are deemed eligible circumstances. have to be heard by the Immigration and Refugee Board of Canada, a quasi-judicial However, after the cuts in 2012, Quebec federal body. It often takes up to six weeks. decided to cover free of charge all health Following this initial interview with an services which were no longer covered by immigration officer, claimants for refugee the federal government. Thus, in Quebec, protection have to proceed to a hearing refugee claimants, privately-sponsored before a panel of the Immigration and refugees or rejected claimants until the date Refugee Board’s Refugee Protection of expulsion had access to the same Division. If the initial claim is refused, the healthcare as before the 2012 reform. refugee claimant can appeal the decision at the Refugee Appeal Division and for In July 2014, a legal challenge launched on judicial review of the Federal Court of the basis of a violation of the Charter of Canada. Unsuccessful claimants are Rights and Freedoms was successful. The sometimes detained before being removed Federal Court ruled that “the changes to the from Canada. IFHP constitute cruel and unusual treatment of a poor, vulnerable and While some of the IFHP cuts have been disadvantaged group by the executive reversed, Bill C-31 implies that individuals branch of the Canadian government […] making inland claims are not considered to This is particularly, but not exclusively so have an active refugee claim until their as it affects children who have been brought interview, leaving them without access to to this country by their parents”106. health insurance or services such as social assistance for at least six weeks. The federal government was enjoined to reinstate the original programme107. The Under the pretext of efficiency and fairness, new government, elected in 2015 did re- the bill allows for differentiation between establish access to healthcare and groups of refugee claimants who are then medications through IFHP for children, subject to different treatment109. Therefore, pregnant women and asylum seekers from access to healthcare depends on the designated countries of origin, before processing of the application for each completely going back to the former system group. This bill had a particularly negative in 2016. impact while the government cut off access to healthcare through the IFHP. It alarmed and confused refugee claimants regarding their access to healthcare.

104 Ibid. http://cas-ncr-nter03.cas-satj.gc.ca/rss/T-356- 105 Op. cit. note 89 13%20Cdn%20Doctors%20v%20AGC%20Judgme 106Canadian Doctors for Refugee Care, the nt%20and%20Reasons.pdf Canadian Association of Refugee Lawyers, Daniel 107 Op. cit. note 86 Garcia Rodriques, Hanif Ayubi and Justice for 108Statutes of Canada 2012, Chapter 17 2012, Children and Youth v Attorney General of Canada http://www.parl.gc.ca/HousePublications/Publicatio and Minister of Citizenship and Immigration, 2014, n.aspx?Language=E&Mode=1&DocId=5697417 Federal Court 109http://www.parl.gc.ca/About/Parliament/Legislati veSummaries/bills_ls.asp?ls=c31&Parl=41&Ses=1

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CANADA

Undocumented migrants undocumented migrants who may not be otherwise covered for medical services, In Quebec, undocumented migrants have no under some circumstances, namely access to public healthcare. Any emergency emergency care113. care they may receive is at their own expense. Several legislative provisions in Quebec indicate a doctor’s duty to treat a patient, Moreover, families with some members particularly where the person is in life- who do not have legal status (e.g., Canadian threatening circumstances. In the Quebec children whose parents lack legal status) Charter of Human Rights and Freedoms, may also renounce to seek care for there is a civil duty “to rescue”114. administrative reasons; for fear that the According to an Act Respecting Health parents’ immigration status could be Services and Social Services, a person exposed or for fear of being reported, entering a healthcare facility “whose life or detained and threatened with expulsion bodily integrity is endangered is entitled to from Canada. receive the care required by his 115 In addition, the Federal Court of Appeal’s condition” . Quebec’s Code of Ethics for 2011 decision in Nell Toussaint v Attorney doctors also obliges them to “come to the General of Canada and the Canadian Civil assistance of a patient and provide the best Liberties Association110 determined that an possible care when [they have] reason to undocumented immigrant was properly believe that the patient has a condition that excluded from a federal health insurance could entail serious consequences if programme and held that benefits under that immediate medical attention is not 116 program were only available to a narrow given” . class of residents and a limited number of Moreover, the act on health services and undocumented migrants within the control social services adopted in 1991 states in and jurisdiction of the Canadian Article 7 that “every person whose life or immigration authorities111. bodily integrity is endangered is entitled to In practice, there is no overarching legal receive the care required by his/her duty in Canada for doctors in clinics or condition. Every institution shall, where hospitals to treat patients112. However, requested, ensure that such care is 117 doctors’ codes of conduct and provisions in provided” . provincial legislation point to the existence of duties to treat some people, including

110 Nell Toussaint v Attorney General of Canada and 113 Ibid. the Canadian Civil Liberties Association, 2011, 114 Charter of Human Rights and Freedoms, RSQ c Federal Court of Appeal, C-12, s 2, provides that “[e]very person must come https://www.law.yale.edu/system/files/documents/p to the aid of anyone whose life is in peril, either df/Intellectual_Life/Toussaint_v._Canada.pdf personally or calling for aid, by giving him the 111 P. Glen, “Health Care and the Illegal Immigrant”, necessary and immediate physical assistance, unless Health Matrix: Journal of Law-Medicine, vol. 23, it involves danger to himself or a third person, or he 2013, has another valid reason.” http://scholarship.law.georgetown.edu/cgi/viewcont 115 Act Respecting Health and Social Services, ent.cgi?article=1788&context=facpub Updated to 1 April 2016, 112 A. Sikka and al., “Access to Health Care and http://legisquebec.gouv.qc.ca/en/ShowDoc/cs/S-4.2 Workers’ Compensation for Precarious Migrants in 116 Code of Ethics of Physicians, Updated to 1 Québec. Ontario and New Brunswick”, McGill October 2016, Journal of Law and Health, Vol 5(2), 2011, http://www2.publicationsduquebec.gouv.qc.ca/dyna http://mjlh.mcgill.ca/pdfs/vol5- micSearch/telecharge.php?type=3&file=/M_9/M9R 2/MJLH%20Vol%20V,%20No.%202%20- 17_A.HTM %20Sikka.pdf 117 Op. cit. note 115

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Articles 513 and 515 of the same act deal Undocumented pregnant women with users’ contributions. Article 513 In Quebec, the cost of healthcare is very establishes that, “The amount of the high for anyone without a valid health contribution may vary according to the insurance card. A gynaecological circumstances or needs identified by consultation can cost as much as €350; on regulation. The contribution shall be top of that is added the cost of blood tests, required by an institution or by the ultrasounds and any other tests required to Minister. The users themselves are bound to ensure the health of the mother and child119. pay it […]”. Article 515 mentions that “the government may prescribe a financial The average bill for delivery services ranges contribution which varies according to from €2,800 to €12,000 per consultation, whether the user or person of whom depending on the institution, but fees are payment of the financial contribution may often higher if there are complications and be required is or is not resident in Quebec, if more complex medical attention is and define, for that purpose, the expression needed120. ‘resident in Quebec’.” This amount includes hospital fees for the In addition, there are internal regulations in mother (between €1,700 and €5,800 per healthcare facilities and other guidelines day, depending on the hospital) and the pertaining to billing in public hospitals baby (between €280 and €830 per day), as which impede undocumented migrants well as the doctor’s fees (amount freely from having access to healthcare. determined by the doctor, usually between €1,000 and €2,000). For women who need Finally, a large number of complaints have it, an epidural adds between €140 and been lodged regarding the billing of €1,000 to the bill, the price being individuals without health coverage. The determined by the doctor121. These costs are college of general practitioners and the a direct obstacle to healthcare services that college of specialist physicians encourage are essential to maternal health. their members to charge up to three times the usual price118. Furthermore, some hospitals require pregnant women to pay all or part of these Thus, even though there is a generally amounts before delivery122. This leads accepted understanding that doctors in women to seriously consider home Quebec are under a legal obligation to treat delivery, to renounce antenatal care and to patients in case of emergency, they do not seek care in the hospital at the last moment hesitate in practice to charge high fees to and deliver as emergency care. undocumented migrants. Since the law does not specify the amount of health costs, The constant fear of being reported to the healthcare facilities and practitioners may immigration authorities and expelled is arbitrarily determine them.

118 Our teams are working on it and are collecting 120 Ibid. official documents about this controversy. 121Op. cit. note 99 119 122 Doctors of the World – Médecins du Monde C. Rousseau, “Perinatal health care for Canada, Women with precarious status and maternal undocumented women in Montreal: When sub- health: Insecure access to health care in Montreal, standard care is almost the rule”, Journal of Nursing 2013, Education and Practice, Vol. 4, No. 3, 2014, http://www.solidarityacrossborders.org/solidarity- http://www.sciedu.ca/journal/index.php/jnep/article city/solidarity-city-journal/women-with-precarious- /viewFile/3326/2325 status-and-maternal-health-insecure-access-to- health-care-in-montreal

 Page 30 CANADA another significant barrier in accessing permanent residency), the child also has the healthcare123. right to a RAMQ card from birth. For women who can afford medical fees, In these cases, even if children are born in they most often have to leave the hospital Canada and qualify for provincial coverage, within an hour or a few hours after giving parents often find it difficult to obtain birth because they do not have the means to documentation or fear the consequences pay for an extra night or day124. In some that seeking healthcare might have on their cases, this leads to medical complications immigration status. that could have been avoided125. Finally, if both parents do not have access As for pregnancy termination126, to RAMQ and are not waiting for the undocumented women have to pay 100% of decision to a permanent residency the services. The price varies according to application at the federal level, the child the stage of pregnancy. By way of does not have the right to be covered by the indication, women without health coverage, RAMQ. including undocumented women, have to pay: Even though the Canadian courts have consistently recognised that most  between €277 and €485 until the 13th provisions of the Canadian Charter of week of pregnancy Rights and Freedoms127, including the  between €485 and €555 until the 16th equality rights guaranteed by Section 15, week of pregnancy apply to non-citizens present on Canadian  between €485 and €692 until the 20th territory, there is no law giving free access week of pregnancy to vaccination if children are not eligible for  €1,177 until the 23th week of the RAMQ. Moreover, in practice, policies pregnancy and government procedures restrict access to healthcare for many children. Children of undocumented migrants The children of undocumented migrants, Indeed, there are important barriers even when born in Canada (thus regarding the access to free vaccination for immediately obtaining Canadian children without health coverage, who citizenship) face many issues regarding include undocumented migrants, but also access to healthcare. Thus, although children born to parents with visitor or Canadian-born children should have the student visas. Children are denied access to right to access the same healthcare services free vaccination in the local community as any other Canadian citizen, they often service centres in their neighbourhood experience challenges in getting coverage (Centre Local de Services Communautaires due to their parents’ status. – CLSC). These centres are in charge of giving free vaccines to children after birth. If one of the parents has RAMQ, the child According to the Doctors of the World – has the right to a RAMQ card from birth. Médecins du Monde Canada (MdM CA) team, there is no consistency in the gratuity If one of the parents is in a status of the vaccines: some CLSC offer the regularisation process (e.g. application for

123 Ibid. 127 Canadian Charter of Rights and Freedoms 124 Op. cit. note 122 http://laws-lois.justice.gc.ca/eng/const/page- 125 Op. cit. note 122 15.html 126http://www.educaloi.qc.ca/en/capsules/abortion- no-legal-time-limits

 Page 31 CANADA vaccines for free, some charge a small fee, recognises three groups of Aboriginal some ask for a fee up to €100. peoples in Canada: First Nations, Métis and Inuit. These three groups have their own For parents who don’t have access to history and their own languages, cultural RAMQ, the only way to access free practices and beliefs. healthcare for their Canadian-born children is through a permanent residency In Quebec, Aboriginal people represent application at the federal level. While the about 1% of the population. In 2011, the application is still being processed, their Aboriginal population had 141,915 children will be eligible for the RAMQ. If individuals in the province. They mainly the application is refused, the children will live in 14 Inuit villages and 41 First Nations be able to keep his coverage until it’s communities who are united into 10 expiration. If the parents are still not nations: Abenaki, Algonquin, Atikamekw, admissible for RAMQ and are not waiting Cree, Huron-Wendat, Innu, Maliseet, for permanent residency at the federal level Mi'gmaq, Mohawk and Naskapi. The Métis when the card expires, then the parents status is not recognised in Quebec. won’t be able to renew their child’s RAMQ card. It should be noted that many parents In Quebec, there are three groups of are afraid to take their children to apply for Aboriginal peoples: Cree, Inuit and First the RAMQ or to be vaccinated in a CLSC. Nations. The healthcare structure differs from one community to another, depending Unaccompanied minors on the status of each community. Generally speaking, unaccompanied minors Communities bound by an agreement are regarded as “people to protect”, making them eligible for the IFHP. Thus, they have The Quebec government finances health the same access to healthcare as asylum and social services in communities bound seekers and refugees, which includes access by an agreement, i.e. the Cree, Inuit and to free vaccination. Naskapi. The territories of the Inuit nation and those of the Cree Nation are two PRAIDA128 is a specialist centre that different health regions in Quebec, health supplies healthcare, medical services and regions 17 and 18. Each Inuit village, Cree assistance to unaccompanied minors. or Naskapi community has a CLSC. The Indeed, this regional programme is Cree and Inuit Nations also have hospitals responsible for them from their arrival until in their territory. they become permanent residents. Finally, the Cree and Naskapi Nations, as Unaccompanied minors seeking asylum in well as Inuit, continue to benefit from Canada have, in general, a lower rate of certain health programmes funded by the success in their asylum claims than federal government, including those for accompanied children or adults. However, home care. They also have access to most they also have a lower expulsion rate129. community health programmes funded by Health Canada (Federal Ministry of Aboriginals in Quebec Health). The term “Aboriginal” refers to the first peoples of North America and their descendants. The Canadian Constitution

128https://www.csssdelamontagne.qc.ca/soins-et- case example”, International Journal of Children's, services/demandeurs-d-asile-praida/ Volume 14, Issue 3, 2006. 129 S. Grover, “Denying the right of trafficked minors to be classed as convention refugees: The Canadian

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Communities not bound by an agreement Refugee Protection Act or In Aboriginal communities not bound by an Regulations in order to apply for agreement, social and health services are permanent residence within Canada; mainly funded by the federal government and (Health Canada and the Department of  believes they would experience Aboriginal Affairs and Northern Canada unusual and undeserved or Development) and generally under the disproportionate hardship if they are responsibility of band councils or tribal not granted the exemption they need; councils. They ensure the delivery of and primary healthcare and social services,  is not eligible to apply for permanent especially community health programmes residence from within Canada in any focusing on health promotion and disease of these classes: prevention. These services are offered by a  spouse or common-law partner, health centre or a nursing station in the  live-in caregiver, community.  protected person and Convention refugees, Health Canada also funds the Non-Insured  temporary resident permit holder. Health Benefits Program that pays the cost of prescription drugs, eye care, dental care, In addition, an application for humanitarian certain medical equipment and supplies and and compassionate grounds cannot be medical transport. Finally, individuals who introduced if in the last 12 months131: need secondary or tertiary care in a Quebec facility are covered by the RAMQ.  a refugee claim was rejected (including claims that were People living outside the communities abandoned) by either the Refugee First Nations and Inuit living outside Protection Division or the Refugee Aboriginal communities receive the same Appeal Division of the Immigration health and social services in Quebec as Refugee Board; Quebecers. They also benefit from the Non-  a refugee claim has been withdrawn Insured Health Benefits Program of Health unless the claim was withdrawn Canada. before the hearing at the Immigration Refugee Board. Protection of seriously ill foreign However, there are exceptions to this “12- nationals month ban”. An applicant can apply if: The Immigration and Refugee Protection Regulations of 2001 130, last amended on 11  they provide sufficient credible and March 2016, foresees in Division 5 the objective evidence that there are application for permanent residence within children under 18 years of age who Canada on humanitarian and compassionate would be directly and adversely grounds if the applicant: affected if they are removed from Canada; or  is a foreign national currently living  they provide sufficient credible and in Canada; and objective evidence that they (or a  needs an exemption from one or more rejected asylum seeker included in requirements of the Immigration and

130 Immigration and Refugee protection Regulations 131http://www.cic.gc.ca/english/refugees/inside/prra - 2002 .asp http://laws-lois.justice.gc.ca/eng/regulations/sor- 2002-227/FullText.html

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their application) would be subject to a risk to life if returned to their home country. This risk would be caused by the inability of their country of nationality to provide adequate health or medical care.  They are from a coutry to which an exception applies132

Individuals facing removal from Canada are eligible for a pre-removal risk assessment (PRRA) in order to suspend or repeal the removal. This procedure was created to avoid people being sent to a country where they would be at risk. Most persons whose PRRA applications are accepted become ‘protected persons’ who may apply to become a permanent resident133.

Treatment of infectious diseases Integrated services for screening and prevention (SIDEP) of STIs and blood- borne infections (BBIs) are a set of services offered by the CLSC health providers (nurses). These services are anonymous and free. They are meant for people who face multiple vulnerabilities, such as homeless people, sex workers, First Nation people, etc. In particular, they provide immunisation against hepatitis A and B, as well as screening for hepatitis B and HIV. Everyone has access to these services, even those without health coverage, regardless of their legal status. Thus, undocumented migrants may have access to free and anonymous screening. However, in practice, some receptionists ask for the health insurance card because they do not know the rights of patients. Treatment for sexually transmitted diseases and blood-borne infections is not accessible without a health insurance card.

132 List of the countries exempted from the 12 month http://www.cic.gc.ca/english/refugees/inside/prra/e ban xemptions.asp 133 Op. cit. note 135

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which was created after the Second World FRANCE War as conceived by the Resistance: all citizens contribute according to their means National Health System and receive healthcare services according to their needs. Article L. 1110-1 of the Public Constitutional basis Health Code states that, “health providers, health facilities […] contribute to […] The Preamble to the Constitution of 27 134 guaranteeing equal access to healthcare for October 1946 , the Declaration of the each individual as required by their health Rights of Man and of the Citizen of 26 condition”138. August 1789 as well as the Charter for the Environment of 2004135 have formed part of Healthcare is managed almost entirely by the “constitutional block”, together with the the state and publicly financed through Constitution of 4 October 1958, since the employee and employer payroll decision of the Constitutional Council in contributions and earmarked income taxes, 1971. revenue from taxes levied on tobacco and alcohol and state subsidies and transfers Firstly, the Preamble to the Constitution from other branches of social security139. guarantees in paragraph 11 “to all, notably to children, mothers and elderly workers, The health insurance system is dominated protection of their health, material security, by the National Health Insurance Fund for rest and leisure. All people who, by virtue Salaried Workers (Caisse Nationale of their age, physical or mental condition, d’Assurance Maladie des Travailleurs or economic situation, are incapable of Salariés – CNAMTS)140. It covers the working shall have to the right to receive majority of the population, including suitable means of existence from beneficiaries of universal medical society”136. protection (PUMA). Moreover, the Charter for the Environment Other basic funds cover specific of 2004 declares that “everyone has the occupational groups: for instance, the right to live in a balanced environment agricultural scheme (Mutualité Sociale which shows due respect for health”137. Agricole – MSA) or the scheme for the self- employed (Régime Social des Indépendants Organisation and funding of French – RSI)141. 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

134Preamble to the Constitution 1946, 139The 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, 135 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 http://www.legifrance.gouv.fr/Droit- States, New-York, 2013 francais/Constitution/Charte-de-l-environnement- http://www.commonwealthfund.org/publications/fu de-2004 nd-reports/2013/nov/international-profiles-of- 136 Op. cit. note 134 health-care-systems 137 Op. cit. note 135 140Civitas, Health care Systems: France, updated by 138 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 141 Ibid.

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National Union of Health Insurance Funds low incomes and/or with chronic (Union Nationale des Caisses d’Assurance conditions148 who also fulfil the condition Maladie – UNCAM) by the 2004 health of residence. insurance reform142. This new federation has become the sole representative of the French citizens residing in France for more insured in negotiations with healthcare than three months and foreign nationals providers. with permission to reside or who have started a regularisation process, must The Primary Health Insurance Funds register with their local CPAM for national (Caisses Primaire d’Assurance Maladie – health insurance coverage149. Having done CPAMs) are responsible for the this, an individual is issued with a “carte reimbursement of claims and benefits143. vitale” with a photo, similar to a credit card, They also manage preventive services and which indicates the individual’s national general health and social care in their insurance rights in electronic form150. This area144. card is not a means of payment, but this electronic treatment does facilitate a The former Regional Health Insurance quicker reimbursement and simplifies the Funds (Caisses Régionales d’Assurance procedure for health professionals and Maladie – CRAMs) which now fall under patients. their respective Regional Health Agencies (Agences Régionales de Santé – ARS), The rate of health insurance system assume responsibility for the CPAMs in coverage (reimbursement) varies across their area145. goods and services but there are several reasons for patients being exempt from co- For the majority of patients, medical goods payment (“ticket modérateur”). This applies and services are not free at the point of use. especially to those with long-term chronic illnesses (Affections de Longue Durée – Accessing France healthcare system ALD151), such as diabetes and HIV/AIDS, All residents are entitled to receive publicly or those who are entitled to supplementary financed healthcare through statutory health universal medical coverage (CMU-C) or insurance from non-competitive statutory pregnant women from the first day of the health insurance funds - statutory entities sixth month of their pregnancy152. whose membership is based on occupation146. Statutory health insurance Statutory health insurance funds cover: fund eligibility is granted either through  Hospital care and treatment in public employment (to salaried or self-employed or private rehabilitation or working people and their families) or as a physiotherapy institutions; benefit to those formerly employed who  Outpatient care provided by general have lost their jobs (and their families), practitioners (GPs), specialists, students and retired people147. In addition, dentists and midwives; universal access is guaranteed for those on

142 K. Chevreul et al., “France: Health system 148 Op. cit. note 139 review”, Health Systems in Transition, Vol 12, No 6, 149 Op. cit. note 140 2010, 150 Op. cit. note 140 http://www.euro.who.int/__data/assets/pdf_file/000 151List of long-term chronic illnesses 8/135809/E94856.pdf http://www.fondshs.fr/Media/Default/Images/Resso 143 Ibid. urces-Allocations/Liste_des_ALD_30.pdf 144 Op. cit. note 142 152http://www.ameli.fr/assures/soins-et- 145 Op. cit. note 142 remboursements/ce-qui-est-a-votre-charge/le- 146 Op. cit. note 139 ticket-moderateur.php 147 Op. cit. note 139

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 Diagnostic services prescribed by who works or lives legally in France in a doctors and carried out by stable manner for over three month has the laboratories and paramedical right to obtain a health coverage. professionals (nurses, physio- therapists, speech therapists, etc.); This evolution makes it easier to access  Prescription drugs, medical health care and allows its continuity, even appliances and prostheses that have during periods of unemployment. The been approved for reimbursement; status of “ayant droit”, giving rights to and health coverage to partners of individuals  Prescribed healthcare-related who are entitled to it has also been transport153. supressed for adults: it became useless as any individual living legally and in a stable Statutory health insurance also partially manner in France, even unemployed, has covers long-term and mental healthcare and now access to the Universal Medical provides minimal coverage of outpatient protection, independently from his/her vision and dental care154. partner. This reform therefore allowed an individualisation of access to healthcare. Universal Medical Coverage: PUMA and CMU-C However, this reform also led to an intensification of the control of the The French Universal Medical Coverage is beneficiary’s residence. Besides, the divided in two separate schemes, both decrees implementing the PUMA reform intended to ensure a health coverage for the may make it difficult to holders of residency entire population, notably for destitute permits to access the PUMA scheme and individuals: the Universal Medical may cause interruptions in their health Protection (PUMA), which allows free insurance coverage. The expected access to basic health insurance benefits, complexification of the administrative and the Complementary Universal Medical procedures may thus alter the achievements Coverage (CMU-C), which allows to of the former CMU. additionally benefit of a free The Universal Medical protection does not complementary health insurance. concern undocumented migrants, who are Since January 1st, 2016, the PUMA covered by a specific scheme called AME (Universal Medical Protection), created by (see below). the Social Security Financing Act of PUMA: Universal Medical Protection 2016155replaced the basic Universal Medical Coverage (CMU). The Universal Medical Protection allows those eligible to be covered by the basic The CMU basic universal coverage, created health care scheme. The conditions of by the CMU Law of 27 July 1999156, eligibility are to work and/or to live in enabled people who are not covered by the France in a legal and stable manner. To health insurance scheme to have access to meet the residency condition, an individual healthcare. The PUMA extended the scope must live in France (mainland France157 or of the health coverage system: any person

153 Op. cit. note 139 http://www.legifrance.gouv.fr/affichTexte.do?cidTe 154 Op. cit. note 139 xte=JORFTEXT000000198392 155https://www.legifrance.gouv.fr/eli/loi/2015/12/21 157 The country of France comprises metropolitan /FCPX1523191L/jo/texte France, including the islands around its coast and 156 Basic Universal Coverage (CMU) Law of 27 July Corsica, and a number of overseas departments and 1999, territories outside the continent of Europe. In this report the term "mainland France" is used to describe

 Page 37 FRANCE the French overseas departments The CMU-C is a free supplementary health (Départements d’Outre-Mer – DOM), with insurance. It enables those eligible to have the exception of Mayotte where the scheme free access to healthcare at the point of use, is different (see below)) continuously for including healthcare services in hospital. more than three months. Foreign nationals must additionally158 prove the legality of To be entitled to CMU-C, an individual their residency. EU citizens have a specific must be on a low income: below €720.42 status (see below). This condition of per month (€8,645 per year) in mainland residency is considered satisfied for asylum France or below €801.75 per month (€9,621 seekers as soon as they started their claim per year) in the overseas departments 161 process and for holders of a Temporary (except Mayotte) . The same conditions Residency Permit for Health Care. of residency must be met as for CMU. However, lodging a request for asylum can take quite a long time, during which it is Supplementary health insurance impossible to claim health coverage. assistance scheme: ACS The Complementary Health Help, called There is no income-condition to access the ACS (Aide Complémentaire Santé), was PUMA. However, the PUMA is free for created in 2005. It provides financial individuals on a low income i.e. below assistance to access supplementary health around €800 per month. Beyond this insurance. People who have access to ACS threshold, it is still possible to benefit from receive financial support for supplementary the PUMA, but it becomes chargeable health insurance of between €100 and €550 through a contribution based on 8% of the per year depending on age162. individual’s income159. The ACS was created for people who In practice, the patient pays for health cannot benefit from the CMU-C, but whose related goods and services (medical incomes are below the poverty threshold. consultations, medication, etc.) but a part of To be entitled to ACS, an individual must the amount will be reimbursed. As an have an income which does not exceed the example, for a GP consultation, costing €23 threshold for access to CMU-C by more total, the health insurance reimburses the than 35%163 : €11,670 per year in mainland mandatory part, known as the “social France or €12,989 per year in the DOM, security part” (€15.10) and the patient has except Mayotte. The ACS is valid for one to pay the supplementary part (€6.90) and year and its renewal is not automatic. the flat-rate contribution (€1)160. Since July 2015, users of ACS benefit from CMU-C: Complementary Universal the “full third-party payer”: they do not Medical Coverage need to pay for their medical expenses The law introducing the PUMA had no upfront and are exempted from the €1 flat- impact on the Complementary Universal rate payment164. Medical Coverage, the “CMU-C”.

all of France excluding the overseas departments and 160http://www.cmu.fr/les_droits_a_la_couverture_m territories. aladie.php 158http://www.cmu.fr/resider-en-france-stable- 161 http://www.cmu.fr/plafonds.php regulier.php 162http://www.info- 159http://www.jechange.fr/assurance/mutuelle- acs.fr/acs_qu_est_ce_que_l_acs.php sante/guides/la-cmu-2571 163 Ibid. 164 Op. cit. Note 162

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The free medical centre system In practice, the application of the PASS (Permanence d’Accès aux Soins – system is very heterogeneous and PASS) imperfect: as the system is different in every hospital, it is difficult for patients to The law against social exclusion of 29 July understand and there is no guarantee that 1998165 created the hospital PASS system they will find the service they need at the on the model of MdM clinics. This system hospital in their area of residence. aims to enable anyone to access outpatient hospital care, even without health coverage It should be noted that this scheme enables and even before administrative procedures people who cannot afford consultations to have been completed. This system gain access to outpatient care only. For any dedicates a specific budget line for these access to inpatient services, individuals consultations, which the hospitals can use must be in an emergency situation or must as they choose. wait until they have health coverage.

Some hospitals offer a multidisciplinary Positive reform on eligibility criteria set-up that places social services on the frontline: patients who wish to benefit from Following the President’s policy the PASS system must first be seen by the commitments, from 1 July 2013, the dedicated social service, and receive a financial resources eligibility criteria for “PASS token” to cover their consultation; CMU-C and supplementary health some specialties will be included in the insurance assistance (ACS) were widened 167 system, others won’t. Other hospitals have by 8.3% (€972.5 per month in March a “dedicated PASS”: basically, a GP service 2016). This revaluation led to a growth of which offers general consultations for free 7.5% of the amount of CMU-C to those who cannot afford the consultations beneficiaries and of 15.1% of ACS 168 because they have no health coverage, have beneficiaries in one year . financial difficulties, etc. In May 2014 (figures last updated on Medical consultations are accompanied by 09/03/2016), 920,000 people were using a social consultation, where social workers ACS, compared with 826,257 before the help gather all the necessary documents and widening of the eligibility criteria (an 169 provide information on how to get health additional 93,743 people) . coverage. Some PASS only agree to see In June 2014, 5,095,097 people had CMU- patients who have a potential right to health C compared with 4,649,533 in June 2013, coverage, others allow unconditional access before the widening of the eligibility to their services and the hospital. criteria (an additional 445,564 people). On 18 June 2013, a circular on the organisation and functioning of PASS166 created a regional coordination structure with a PASS framework which evaluates every PASS in France. MdM FR participated very actively in designing what a PASS should be.

165http://reaannecy.free.fr/Documents/congres/Cong 167 http://www.cmu.fr/acs.php re_IDE/PASS_texte.pdf 168http://www.cmu.fr/fichier- 166Circular of 18 June 2013, utilisateur/fichiers/Annuaire_statistique_12- http://www.sante.gouv.fr/fichiers/bo/2013/13- 2013.pdf 07/ste_20130007_0000_0078.pdf 169 Ibid.

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New healthcare Bill – January 2016 However, this law has several flaws:

A new healthcare Bill was adopted on 26  Simplification of access to rights and January 2016170, bringing several care should be a priority of this bill. significant evolutions to the French All NGOs are waiting for the healthcare system as: integration of the AME into the CMU. Another expected measure is  the creation of safe supervised drug a multi-year CMU-C instead of a injection centres, which unlocks new yearly renewal. opportunities regarding drug users’  Foreseen negative impact on the care and treatment; access to healthcare for migrants with  the expansion of the third party a short permission to stay: breaches of payment system, widening the the continuity of health coverage due conditions of free access to care at to complex administrative rules172. point of use, aiming to reduce the  No change to reduce refusal of amount of patients giving up seeking healthcare: still monitored by the care171; French Medical Board which is both  the acknowledgement of the judge and party. The notion of refusal beneficial character of the presence of to healthcare should be clearly interpreters and health mediators in defined, the burden of proof should be health structures; reversed and an independent  associations can call upon the High observatory should examine refusals Authority for Health (Haute Autorité of healthcare through a situational de Santé – HAS); test;  the Economic Committee for  New healthcare bill announces Healthcare products (Comité actions aiming to improve access to Economique des produits de Santé – care in the overseas territories but it is CEPS) can make a framework still missing the opportunity to match agreement with registered up law in Mayotte with mainland law associations; regarding health coverage.  midwifes can now perform Voluntary Termination of Pregnancy using Access to healthcare for migrants drugs, which expands possibilities of safe abortion Asylum seekers and refugees  accreditation of more organisations According to Article R. 380-1 of the Social to distribute STD and STI testing Security Code, asylum seekers and refugees equipment and support to STI & STD have the same access to healthcare as prevention authorised residents. In theory, they obtain  Homosexual can now be blood social security health coverage upon arrival donors (but with restrictions) on French territory.

They have access to the PUMA and CMU- C if they fulfil the financial conditions. If they have no official documentation, they

170 Law on the modernization of the healthcare started January 2016 and shall be full on 30 system – 2016 November 2017 https://www.legifrance.gouv.fr/eli/loi/2016/1/26/AF 172For more details, see : SX1418355L/jo/texte http://www.medecinsdumonde.org/actualites/presse 171 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

 Page 40 FRANCE can make a sworn statement regarding their State is responsible. If another state is financial resources. They are exempt from examining the asylum application, it the necessity to prove a three month long is forbidden for the French authorities residency in France173. to consider it. Asylum seekers subjected to the Dublin III system are They can also apply for CMU-C, which will not entitled to social security but to be granted depending on their financial the AME, as undocumented migrants, resources, as mentioned above. As nationals according to the circular n° entitled to CMU-C, all their medical DSS/2A/2011/351 of 8 September expenses will be supported at the 100% rate 2011 of social security.  those from “safe countries”175 who are subject to the “priority” It should be noted that an address is always procedure, which denies them a needed for administrative procedures. temporary residence permit, while Asylum seekers and refugees therefore need granting them the “right to stay in to provide one to the prefecture when they France” until a decision is made by submit their asylum application to the the authorities about their asylum prefecture; this procedure then eventually application (officially 15 days for the entitles them to health coverage (PUMA Office for the Protection of Refugees and CMU-C). Providing an address is often and Stateless Persons (OFPRA) and complicated, as asylum seekers’ four days for people in an accommodation is usually precarious and so administrative detention centre176). they must use an administrative address to receive their mail. This administrative Thus, they can only access AME under address is provided by entitled non-profit certain conditions (three months’ residence, organisations, which are overwhelmed with income conditions, proof of address) and requests. For instance, in Paris, it takes access healthcare through PASS while they around five months to get an address. Thus, have no medical coverage. during this period, they are considered as undocumented migrants. They may only Pregnant asylum seekers and refugees access AME under certain conditions and In theory, pregnant women have the same must access healthcare through PASS while access to antenatal, delivery and postnatal they have no medical coverage. care as nationals and authorised residents. Some asylum seekers are excluded from the This includes termination of pregnancy. In general legal system by local prefectures: practice, they may face the same barriers as those described above.  those who are subject to the Dublin III regulation174. This Regulation Children of asylum seekers and refugees establishes the principle that only one In theory, children of asylum seekers and Member State is responsible for refugees have the same access to healthcare examining an asylum application and as the children of nationals or authorised defines criteria to determine which

173http://www.cmu.fr/resider-en-france-stable- and human rights (art. L741 CESEDA), defined by regulier.php the OFPRA 174 Dublin III Regulation - 2013 http://www.ofpra.gouv.fr/sites/default/files/atoms/fi http://eur- les/150909_ldu_liste_pos.pdf lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L 176https://www.service- :2013:180:0031:0059:EN:PDF public.fr/particuliers/vosdroits/F15376 175List of the”safe countries”, considered as respectful of principles as democracy, rule of law

 Page 41 FRANCE residents, as children healthcare is always reimbursed at 15%. However, AME considered as a priority. coverage is regularly revised by law, as the principle of covering the health costs of  They can access mother and child undocumented migrants is publicly health centres (Protection Maternelle questioned by many political leaders. et Infantile – PMI) without any status requirements and for free. The PMI The AME is valid for one year. But the centres offer preventive care, follow- delay in obtaining AME can be several up and vaccination for babies and months after the request is submitted, children up to six years old. In some reducing de facto the duration of AME areas, however, these centres are validity, which begins on the day of overcrowded and face difficulties submission. If the migrant is still with responding to the needs. undocumented after one year, he/she can  Even before starting the asylum request a renewal of AME. In theory, process, minors should in theory have migrants should submit the request for access to AME health coverage as renewal two months before the AME soon as they arrive in France. In expires. In practice, the renewal takes much practice, their parents lack more than two months and there is no health information and often don’t request coverage during the gap in between. AME before they have been in the country for at least three months, and The €30 AME admission fee for actually obtaining AME takes several undocumented migrants, introduced by the months. previous French government, was repealed by the new socialist one in 2012 as one of Undocumented migrants its first measures. Undocumented migrants benefit from As undocumented migrants are not allowed specific healthcare mechanism: the State to work, they have to declare their resources Medical Help - AME (Aide Médicale (no need of formal proof) and expenses. d’Etat). Article L251-1 of the Social Action When an undocumented person has and Family Code states that an resources above the threshold, they are not undocumented individual is entitled to entitled to any health coverage and must AME if he/she has been residing illegally in pay the full costs for themselves and their France for more than three month and if family, which is obviously impossible for his/her resources are lower than €720 per most of them. month in mainland France and €802 in the DOMs177. Another condition undocumented migrants must fulfil to benefit from AME is to prove AME gives access to all healthcare their identity. Some migrants do not possess providers without paying at the point of an identity document179 and can therefore service. Costs are fully covered, except for not submit a request. Furthermore, if a prosthesis (dental, optical, etc.), medically migrant wants to prove his/her identity with assisted reproduction and medicines with a birth certificate, said document will have limited therapeutic value, according to the to be translated by an official translator180, therapeutic benefit evaluation system, Service Médical Rendu - SMR178, which are

177https://www.service- 179http://www.ameli.fr/assures/droits-et- public.fr/particuliers/vosdroits/F3079 demarches/par-situation-personnelle/vous-avez- 178 The SMR is a criteria used in public health to des-difficultes/l-8217-aide-medicale-de-l-8217- classify drugs or medical devices according to their etat/les-conditions-pour -beneficier-de-l-ame.php therapeutic or diagnostic utility. 180Ibid.

 Page 42 FRANCE which often costs a lot of money and is not In order to overcome these gaps and under easily available. the pressure of the ODSE, the circular DHOS/DSS/DGAS adopted on 16 March The residence condition, added to the proof 2005181 (Article L254-1 of the Social of identity, can create a real barrier to access Action and Family Code182) created the to healthcare for undocumented migrants. Fund for Vital and Urgent Care (Fonds pour Those who are unable to prove that they les soins urgents et vitaux – FSUV), valid have been resident in France for more than only in hospitals. three months are only entitled to hospital services for care that is deemed urgent The fund aims to finance the delivery of (pregnancy, pregnancy termination, etc.). essential care to individuals who do not Moreover, the documents which are benefit from AME, i.e. those who do not accepted in fulfilment of the residence fulfil the three months residence condition condition are not the same for all the social or cannot prove their identity. Under this security agencies in France. In each urgent care scheme, healthcare is always department, the local CPAM has its own considered as essential care for pregnant way of applying the regulation and can women and children. decide whether or not to accept certain documents. For example, certificates Undocumented pregnant women delivered by non-profit organisations like Pregnant women may have access to AME. MdM are recognised as proof of residence Under this scheme, they may access by some CPAMs and not by others. This antenatal, delivery and postnatal care. In creates difficult and unequal access to addition, they can access termination of health coverage. pregnancy. However, because of the above- mentioned administrative barriers, it is very An address is also necessary in order to difficult for them to access the AME apply for AME. However, most scheme. undocumented migrants cannot prove their address and must then request either This is why the Vital and urgent care support from a relative by using their circular183 ensures that undocumented address (although the conditions for using a pregnant women who do not benefit from relative’s address are not the same in all AME have access to antenatal, delivery and departments) or an administrative address. postnatal care and termination of This can be provided either by the pregnancy, because these health services Communal Centre for Social Support are always considered to be essential. (Centre Communal d’Action Sociale – CCAS) of the city where the individual lives Children of undocumented migrants (if they fulfil the conditions of the CCAS, In French law, only adults are required to which are often extremely complicated) or have an authorization to stay on the by a entitled association. In many areas territory, thus, children are never (especially Paris and its suburbs), considered as undocumented migrants. organisations face difficulties in responding to the level of need, as the CCASs don’t In principle, children of undocumented always fulfil their role. migrants are entitled to the AME scheme upon arrival in France (without the three-

181Circular of 16 March 2005 http://legifrance.gouv.fr/affichCodeArticle.do?cidT http://circulaires.legifrance.gouv.fr/pdf/2009/04/cir exte=LEGITEXT000006074069&idArticle=LEGI _18852.pdf ARTI000006797164&dateTexte=&categorieLien= 182 Social Action and Family Code, Article 254-1 cid

 Page 43 FRANCE month residence condition), even if their They have to prove three months of parents are not eligible. The right is granted residence in France. Moreover, CPAMs for one year184. must find evidence that they have no health coverage in their country of origin. In In practice, several CPAMs wait for the practice, CPAMs ask EU citizens to prove entitlement to AME of their parents (after that they do not have health coverage in three months of residence) to affiliate their country of origin, which is an children as assignees, whereas children important administrative barrier192. Some should be affiliated on their own behalf. CPAMs also ask EU citizens to request They can use the PASS system and invoke PUMA first before they can apply for AME, 185 the 2005 Vital and urgent care circular even if they will clearly not obtain it, but access to healthcare differs from one because they don’t fulfil the conditions. The PASS to another. process for an EU citizen to obtain AME is in general quite complicated, as the practice Children who do not benefit from AME can of each CPAM varies and makes it difficult go to hospital and have free access to for individuals to understand the rules that healthcare, because care for children is apply. considered as emergency care186. However, since the circular Moreover, children can receive DSS/2A/DGAS/DHOS, adopted on 7 vaccinations against all the principal January 2008193, modifying the above- diseases free of charge187. In accordance mentioned circular of 2005, destitute EU with the general health system, all children citizens benefit from the FSUV and have have access to immunisations at PMI access to emergency care. This circular centres188. specifies that while EU citizens have the EU citizens right to move and reside freely within the territory of a member state, they do not have 189 Pursuant to the Directive 2004/38/EC , full freedom to settle and reside in France. destitute EU citizens are considered as Therefore, they can be considered as undocumented migrants (no health undocumented migrants regarding coverage, insufficient financial provisions governing entry and stay on 190 resources) and they can access AME French territory. under the same conditions as any other undocumented migrant191.

184Circular of 8 September 2011, http://eur-lex.europa.eu/legal- http://www.sante.gouv.fr/fichiers/bo/2011/11- content/FR/TXT/?uri=celex%3A32004L0038 10/ste_20110010_0100_0055.pdf 190These are conditions to be authorized to reside in 185 Op. cit. note 181 France for inactive individuals. 186 Op. cit. note 181 191Circular of 9 June 2011, 187http://www.ameli.fr/assures/prevention-sante/la- http://circulaire.legifrance.gouv.fr/pdf/2011/07/cir_ vaccination.php 33406.pdf 188 Comité Médical pour les Exilés (COMEDE), 192Médecins du Monde 2014, Report on access to Migrants/étrangers en situation précaire, 2008, healthcare in France http://docplayer.fr/5525447-Rapport-2014-du- http://www.medecinsdumonde.org/actualites/public comede-introduction-2.html ations/2015/10/17/observatoire-2014-de-lacces- and aux-droits-et-aux-soins-en-france http://www.immigration.interieur.gouv.fr/Asile/L- 193Circular of 7 January 2008, accueil-des-demandeurs-d-asile/Les-droits-sociaux- http://www.sante.gouv.fr/fichiers/bo/2008/08- des-demandeurs-d-asile 02/a0020048.htm 189 Directive 2004/38/EC

 Page 44 FRANCE

Unaccompanied minors the prohibition of medical age assessment and for the application of a presumption of Unaccompanied minors in France should minority in the case of those who present have access to healthcare through the health themselves as minors. insurance system in the same way as the children of national or authorised residents do. Protection of seriously ill foreign nationals The care of unaccompanied minors falls In this area, French legislation is rather under Child Protection which is the protective. In accordance with the Code on responsibility of the departmental council Entry and Residence of Foreign Nationals through child welfare services (Aide Sociale and Right of Asylum194, an ill foreign à l’Enfance – ASE). Children taken into care national can obtain a residence permit if by social services can benefit from their state of health requires medical accommodation, socio-educational assistance which lack could cause him measures, counselling, access to healthcare consequences of an exceptional gravity, on and education until they reach their the condition that no treatment of this majority. In order to determine their condition is available in his country. This eligibility to such measures, these services additional criterion was introduced, despite must assess the minor’s situation through an strong opposition from organisations and evaluation. This evaluation aims to some members of the parliament, by a determine whether or not young people reform related to immigration, integration seeking protection are under the age of and nationality, promulgated on 16 June majority and unaccompanied. 2011 (“Loi Besson”)195. It does not apply to Regrettably, unaccompanied minors are too Algerians, who have a specific statute and often faced with distrust and questioning of depend from the 1968 Agreement between their claim. Even when they are presented France and Algeria, however, in practice, with documentary evidence of their age, the the authorities apply to them the same rules authorities often rely on medical age as for other foreigners. assessment techniques, such as X-rays of Thus, the verification of the existence of bones and teeth and pubertal development appropriate treatment in the country of examinations. return would consequently be sufficient to MdM strongly criticises these practices, decide that the individual can be sent to considered as imprecise, unethical and their home country to be treated. There is unreliable. MdM advocates a process of age nevertheless an exception, in case of assessment based on a multi-disciplinary exceptional humanitarian circumstances. approach, which focuses not on Furthermore, the ECHR condemns the chronological age exclusively, but rather on expulsion of ill foreigners when they are in the needs of children and young people. too serious condition to be transported. MdM is also calling, as the National A new bill on immigration law is currently 196 Consultative Commission on Human under discussion , it contains several Rights did in an advice of 26 June 2014, for positive measures, as adding the notion of

194https://www.legifrance.gouv.fr/affichCode.do;jse 195Law of 16 June 2011, ssionid=BBBD8FB9D375F5A55806266730FB10E http://www.legifrance.gouv.fr/affichTexte.do?cidTe 5.tpdila09v_3?idSectionTA=LEGISCTA00000618 xte=JORFTEXT000024191380&categorieLien=id 0199&cidTexte=LEGITEXT000006070158&dateT 196http://www2.assemblee- exte=20160311 nationale.fr/documents/notice/14/ta/ta0683/%28ind ex%29/ta

 Page 45 FRANCE effectivity of the access to treatment in the l’Intégration), which depends of the condition of availability of care in the home Ministry of Interior. country, putting more health-related restrictions on expulsion and allowing both This procedure has numbers of flaws in parents of an ill child to obtain a residence practice. Many prefectures require more permit with the possibility to work. documents than the law from ill foreigners and complicate the procedures, making Seriously ill foreign nationals can apply for access to residency for health reasons long a temporary, renewable, one-year residence and complicated to obtain. The medical permit for “private and family life”, if they confidentiality is frequently breached and have been in France for more than one year the prefects use this medical information to or a provisional residence permit for care of make their decision201. six months maximum if they have only been in France for a short time197.To determine Until 2012, medical advice was respected the type of protection to be granted, the and followed by the prefect. Since 2012, prefecture considers administrative criteria prefects have been increasingly rejecting as ordinary residence, and evaluates applications, despite favourable medical whether the foreigner could be a possible advice from the MARS. Some prefects “threat to public order”. consider that they are not bound by the MARS’ opinion and undertake a new The final decision belongs to the prefect investigation, based on inadequate medical who has to take into account the medical evidence given by physicians who are not advice of a doctor from the Regional Health listed in the regulation to assess access to Agency (Médecin de l’ARS – MARS)198. healthcare in countries of origin. Thus, in However, the Ministry of the Interior often 2014, 6,912 new applications were accepted becomes involved in the medical advice and the total amount of people living with a scheme, despite the fact that the permit to stay due to medical reasons is competence in this area belongs exclusively around 30,000202, showing a great stability to the Ministry of Health199. Thus, since 1998. According to 1,398 patients management of migration interferes with followed by some NGOs, the rate of health policies. What is more, pursuing to positive decisions was 85%203. Article 20 of the Law on foreigners of 7 March 2016200, starting January 2017, the In order to avoid a restrictive and arbitrary competence for medical advice in this interpretation of this ambiguous concept of procedure will be transferred from the “absence of appropriate treatment”, the MARS to doctors from the French Office of Ministry of Health provided clarification in 204 Immigration and Integration (OFII – Office an instruction of 10 November 2011 . Français de l’Immigration et de After reiterating the medical ethical

197http://www.immigration.interieur.gouv.fr/Immigr 201 Op. cit. note 192 ation/Les-etrangers-malades-et-leurs- 202http://www.immigration.interieur.gouv.fr/Info- accompagnants2 ressources/Statistiques/Tableaux-statistiques/L- 198 Observatoire du Droit à la Santé des Etrangers admission-au-sejour-les-titres-de-sejour (ODSE), Les personnes étrangères malades et leurs 203Comité pour la Santé des Exilés (COMEDE), proches ont le droit de vivre dignement en France, Rapport COMEDE 2014, 2015, http://docplayer.fr/5525447-Rapport-2014-du- http://www.odse.eu.org/IMG/pdf/Recommandation comede-introduction-2.html s_ODSE_projet_de_loi_immigration_22_janvier_2 204Instruction of 10 November 2011, 015.pdf http://www.sante.gouv.fr/fichiers/bo/2011/11- 199 Ibid. 12/ste_20110012_0100_0085.pdf 200Law on Foreigners – 2016 https://www.legifrance.gouv.fr/eli/loi/2016/3/7/INT X1412529L/jo/texte

 Page 46 FRANCE obligations for the application procedure, hepatitis, created in 1988, authorised such as continuity of care and the by the ARS and funded by health observance of professional secrecy, the insurance; instruction specifies the meaning of  Information centres for testing and “absence of appropriate treatment”. diagnosis of sexually transmitted infections (Centres d’information, de “Treatment” is defined as all means dépistage et de diagnostic des implemented to treat (drugs, healthcare, infections sexuellement follow-up tests, full assessment tests); the transmissibles – CIDDIST) where absence or presence of “appropriate testing is carried out for specific treatment” is assessed according to the sexually transmitted infections. Since individual’s health (stage of the disease, the recentralisation introduced by the complications) and care services in the 2004 Law related to local freedoms country (health infrastructure, medical and responsibilities, they have been 205 demography, etc.) . managed either by the general councils by agreement with the State However, according to the Medical or through structures authorised by Committee for Exiles (Comité Médical the ARS and funded by the State. pour les exilés – COMEDE)206, in addition to applications begin rejected by the prefect, These facilities are open to all individuals, in spite of favourable medical advice from minors and adults. The absence of health ARS doctors, applications are also still coverage or residence permit is not an rejected because some MARS do not obstacle. respect the instruction of 10 November 2011. Article 47 of the Social Security Financing Act for 2015207 aims to merge these two It should also be noted that MdM FR types of facility into one, called information strongly criticised the “Country fact files” centres for free testing and diagnosis of for 30 countries produced by the Inter- sexually transmitted infections (Centres ministerial Committee for the Management gratuits d'information, de dépistage et de of Immigration in 2007. Furthermore, MdM diagnostic – CGIDD), with a single legal produces counter expertise proving that status and funded by health insurance. there was no effective access to care in most of these countries. If a person is diagnosed with an infectious disease, access to treatment depends on the Prevention and treatment of disease and their situation relating to health infectious diseases coverage:  HIV: this infection is considered an Sexually Transmitted Infections emergency even if the person has no Currently, there are two types of facilities health coverage. The patient will be for prevention and testing of sexually treated in hospital and the costs transmitted infections. covered by the PASS system or by the FSUV.  Free and anonymous testing centres  Hepatitis B and C: if a person is (Centres de dépistage anonyme et diagnosed but the disease is not active gratuit – CDAG) for HIV and

205AIDES, Observatoire des étrangers malades - 206 Op. cit. note 183 Droit au séjour pour soins, 2012, 207Law of 22 December 2014 http://www.aides.org/sites/default/files/doc/120418 https://www.legifrance.gouv.fr/affichTexte.do?cidT _Rapport_EMA.pdf exte=JORFTEXT000029953502

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(hepatitis can remain “silent” for permission to reside208, but also part of the several years before starting to affect population of Mayotte (French people born the patient’s health), there is usually in Mayotte) who are unable to provide proof no access to treatment if there is no of their marital status or present other health coverage. Access to treatment documents illegitimately required will then depend on access to AME or (including proof of residence and bank CMU, depending on the person’s account details). status. The cost of treatment being very high, if there is a major obstacle Children can only be affiliated as to health coverage (no identity papers, dependents of a French citizen residing in no address, no information on rights Mayotte or of a foreign national with to health, etc.), there will be no permission to reside in Mayotte. Children of possibility for access to healthcare. undocumented migrants or unaccompanied minors do not have access to any form of Tuberculosis health protection, except for unaccompanied minors supported by the Dedicated facilities for the prevention, child welfare services since 2013. In 2015, testing and treatment of tuberculosis (TB) 75% of minors were not affiliated to social also exist in France: Centres for Fighting security209. Tuberculosis (Centres de Lutte Anti- Tuberculeuse – CLAT). Regarding access to healthcare, PASS do not provide medical consultations and the If a person is diagnosed with TB, even circular creating the FSUV is not applicable without health coverage, their treatment in Mayotte. will be covered by the PASS or the urgent care scheme and fully covered, including A special scheme is provided for exemption hospitalisation. from payment in case of emergency care, but it does not always work and definition The situation in Mayotte of emergency care is more restrictive than in mainland France. Thus, undocumented Discrimination by the healthcare migrants, about one third of the population, scheme must pay a fee (€20 for a medical

consultation with a GP and up to €658 per In Mayotte, PUMA, CMU-C and AME do 210 not exist. day for hospitalisation in gynaecology ). This is much too expensive in relation to Until 2005, the entire population had free their financial resources (one in five access to healthcare in public healthcare inhabitants earns less than €100 per month). facilities (clinics and hospitals). Then, a However, the order adopted on 31 May specific social security system was 211 implemented, which was only open to 2012 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 with

208Order of 20 December 1996, 210Order of 21 July 2014, http://www.legifrance.gouv.fr/affichTexte.do?cidTe http://www.gisti.org/IMG/pdf/arrete_ars- xte=LEGITEXT000005622330&dateTexte=20080 mayotte_no182_2014-07-21.pdf 126 211http://www.legifrance.gouv.fr/affichTexte.do?cid 209http://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

 Page 48 FRANCE emergency212. This change was a major legal advance which enshrined the principle of free access to healthcare in the public system for minors and pregnant women in precarious situations. The scheme does not include private GPs’ consultations, emergency transportation, nursing home care, medical equipment are not free of charge. It should be noted that this order is not systematically applied in Mayotte.

Compliance to law Mayotte became the outermost region of the European Union on 1 January 2014 after becoming a French department in 2011. Its legislation must comply with EU and national standards. Thus, the CESEDA now applies to Mayotte. However, the transposition of these laws in Mayotte is subject to derogations that continue to deprive foreign nationals of the rights they would be entitled to in mainland France.

212 This amount is not set by any law.

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GERMANY

For statutory insurance, insurance payments GERMANY are based on a percentage of income and shared between employees and employers. National Health System Approximately 85% of the population belong to the public statutory health Organisation and funding German insurance scheme, whereas only 15% have 216 healthcare system private health insurance . German laws regarding access to healthcare Since 2009, it is compulsory for all German are made at the national level. However, as citizens and long-term residents to have a federal country, responsibilities for the health insurance. Employees earning less healthcare system in Germany are shared than €56,250 per year (as of May 2016), are between the Länder (federal states), the mandatorily covered by the public statutory federal government and civil society health insurance scheme (GKV). Anyone organisations213 (i.e. important earning more than this opt-out threshold can competencies are legally delegated to choose to be covered by a private health membership‐based, self‐regulated insurance plan, or by both public and organisations of payers and providers)214, private plans217. thus combining vertical implementation of policies with strong horizontal decision- Since 2009, a uniform contribution rate to making215. the GKV has been set by the government. As of 2016, employees or pensioners with There are two insurance systems: statutory health coverage contribute 7.3% of their health insurance (Gezetzliche gross incomes, while the employer or Krankenversiecherung – GKV) and private pension fund adds another 7.3%218. In health insurance (Private addition, supplementary premiums of Krankenversicherung – PKV). between 0.3% and 1.9% are collected from the employees’ gross salaries. Since 2011, The GKV is based on the principle of the employers’ share has been fixed at solidarity and the principle of benefits in 7.3%, so that health insurance fund kind, meaning that services do not depend members will have to fund future on income or contribution and that the expenditure increases in the healthcare insured receive benefits without up-front sector solely via their supplementary payments on their part. premiums of the employees219.

213 For instance, there are “Kassenärztliche 2013), Based on the 2001 Civitas Report by David Vereinigung” (represents the interests of Green and Benedict Irvine, approximately 24.000 registered doctors) or http://www.civitas.org.uk/nhs/download/germany.p “Bundesärztekammer” (umbrella organisation df which represents political interests of almost half a 216The Commonwealth Fund, 2015 International million doctors) or “Deutsche Patientenvereinigung” Profiles of health Care Systems, January 2016 (organisation for patients). http://www.commonwealthfund.org/~/media/files/p 214 R. Busse and J. Wasem, “The German Health ublications/fund- Care System – report/2016/jan/1857_mossialos_intl_profiles_2015 Organisation, Financing, Reforms, _v7.pdf Challenges…”, European Observatory on Health 217Busse R, Blümel M., Germany: health system Systems and Policies, Brussels, 2013. review. Health Systems in Transition, 2014, p. 121 https://www.mig.tuberlin.de/fileadmin/a38331600/ http://www.euro.who.int/__data/assets/pdf_file/000 2013.lectures/Brussels_2013.02.13.rb_GermanyHe 8/255932/HiT-Germany.pdf?ua=1 althCareSystem-FINAL.pdf 218 Op. cit. note 216 215 Civitas, Health care Systems: Germany, updated 219 Op. cit. note 217, p. 253 by Emily Clarke (2012) and Elliot Bidgood (January

 Page 50 GERMANY

Within the GKV, this contribution also residents choose to which sickness fund covers employed citizens’ dependents i.e. they want to belong. non-earning spouses and children220. Regarding payments for healthcare In the case of PKVs, contributions depend (individual co-payments), until the end of not on income but on the person’s health 2012 patients had to pay €10 per quarter if status, age and gender. Since the 2009 they went to the doctor. Since 1 January reforms, however, PKV private health 2013, this provision no longer applies, as it insurance companies are required to offer a was eliminated by Section 1 G. v. basic rate that corresponds to the services 20.12.2012 BGBl. I S. 2789223. Patients no offered by the GKV statutory health longer have to pay anything for medical insurance. consultations, for which health providers are reimbursed directly by the health Insurance of destitute nationals depends on insurance funds. Small out-of-pocket- their individual situations. Those with payments must however be made for other health coverage must pay the compulsory medical services as physiotherapy or insurance (Pflichtversicherung). This costs specific dental care. a minimum of €135 per month, depending on the individual’s income. If they receive Some health services, as medical cosmetic welfare benefit, then the social welfare procedures or acupuncture, were excluded office (Sozialamt) normally pays. However, from the statutory insurance coverage scope if the person has had a “gap” in their by the Federal Joint Committee insurance payments and has to repay their (Gemeinsamer Bundesausschuss)224, as debts retrospectively, the social welfare they go beyond what is defined by law as office does not cover this. This is why in sufficient, appropriate and economic patient many cases the debt keeps the person from care. These “Individual health services” having full coverage (in such cases the (Individuelle Gesundheitsleistungen - IGel) insurance only covers emergency bills). have to be fully payed for and are usually not reimbursed225. A flaw of this system is its complexity, making it difficult to fill all the right forms For medication, patients have to pay 10% of and to comply with all rules of the welfare the cost of the medication. This co-payment benefits system. amounts to at least €5 and at most €10 per prescription226. Accessing Germany healthcare system Measures have also been put in place to Health insurance is provided by 118221 prevent extreme financial burden. Annual competing, not-for-profit, non- expenditure on co-payments for any governmental health insurance funds called German citizen must not exceed 2% of “sickness funds” (Krankenkassen), through gross annual household income. That limit the statutory health insurance scheme or by was established to prevent unreasonable voluntary substitutive private health costs for those on low incomes. The 2% insurance (PKV)222. Citizens and long-term calculation is based on the household income, from which an allowance for each household member is subtracted. In

220 Op. cit. note 216, p. 69 https://www.gesetze-im- 221 As of May 2016 internet.de/sgb_5/__92.html 222 Op. cit. note 139 225 http://www.kbv.de/html/igel.php 223http://www.buzer.de/s1.htm?g=SGB%2BV%2B3 226 Social Code, Book V, Statutory Health Insurance, 1.12.2012&a=28 Section 61 224 Guidelines §92 of the Social Code, Book V http://www.gesetze-im-internet.de/sgb_5/

 Page 51 GERMANY addition, people with chronic illnesses or Some measures of the 2007 law were disabilities do not have to pay more than 1% postponed to 2009. The 2009 law stipulates of gross annual household income. Persons that any permanent resident/citizen must be receiving social aid (Sozialhilfe) pay a covered by private health insurance if they maximum of €45.84 (if chronically ill) or do not want to become affiliated to the €91.68 (if not) per year. Children under 18 statutory health insurance and if they are on are exempted of any co-payment227. a high income.

Statutory health insurance (GKV) Since these reforms, individuals who were 228 covers : previously excluded from the statutory health insurance system because they did  Preventive services, inpatient and not pay their contributions have had to be outpatient hospital care; reintegrated.  Physician services;  Mental healthcare; However, and this is the negative point of  Dental care; these reforms, individuals have to settle  Optometry; their debts with the insurer and retroactively  Physiotherapy; pay contributions since 2007 or whenever  Prescription drugs; they became obliged to be insured. Until  Medical aids; they do so, their insurance only covers  Rehabilitation; emergency care. For example, a permanent  Hospice and palliative care; resident who became affiliated to the  Sick leave compensation. statutory health insurer in 2010 has had to repay their debt (absence of monthly contributions) from 2007 to 2010. Recent reforms On 25 October 2006, the German This law created a significant dysfunction government presented a comprehensive because many individuals could not repay healthcare reform bill, entitled the Statutory their debt. Then, a new law came into effect Health Insurance Competition on 11 August 2013, which was adopted to 231 Strengthening Act, adopted on 30 March reduce this debt . 2007229. The law aimed to promote Regarding the public insurer, there are two competition in health insurance and cases: healthcare delivery, to increase efficiency and to improve quality through more  If an individual subscribed from April incentives for better coordination of care230. 2007 to 31 December 2013 and did The law stipulates that any permanent not pay their contributions during this resident or citizen must be covered by the period, but started paying from 1 statutory health insurance if employed and January 2014, the incurred debt is under a certain income ceiling. cancelled.

227 Op. cit. note 216 230 M. Lisac, “Health care reform in Germany: Not 228 Ibid. the big bang”, Health Policy Monitor, Germany, 229 Statutory Health Insurance Competition 2006, Strengthening Act – 2007 http://www.hpm.org/de/Surveys/Bertelsmann_Stift http://www.bgbl.de/xaver/bgbl/start.xav?startbk=B ung_- undesanzeiger_BGBl&start=//*%255B@attr_id=% _D/08/Health_care_reform_in_Germany__Not_the 27bgbl107s0378.pdf%27%255D#__bgbl__%2F%2 _big_bang.html F*%5B%40attr_id%3D%27bgbl107s0378.pdf%27 231Law of 15 July 2013, %5D__1464082392301 http://www.dghm.org/krankenhaushygieneinfektion spraevention/m_432

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 If an individual subscribed from April German territory, they are only entitled to 2007 to 1 January 2014, but still did basic healthcare services determined in not pay their contributions from 31 Section 4 of the AsylbLG and Section 19 of December 2013, they must pay their the Law on Infectious diseases debt since this date, plus a 1% rate of (Infektionsschutzgesetz)234. interest. The basic services covered are: A 2013 guideline of the National  treatment for severe illnesses or acute Association of Statutory Health Insurances, pain and everything necessary for however, foresees a considerable reduction curing, improving or relieving the of the debt232. Family members without illnesses and their consequences, income continue to receive the full package including dental care of health services, even if the debt is not yet  antenatal and postnatal care fully paid.  vaccinations MdM DE teams treat many German citizens  preventive medical tests and at MdM’s programmes. Most of them were anonymous counselling and privately insured before the reform but screening for infectious and sexually cannot afford the monthly fees anymore. transmitted diseases Some of them also come because they were not insured prior to when health insurance The medically necessary care for chronic became mandatory and cannot pay their diseases has to be provided. This includes debts. psychotherapy for asylum seekers suffering from PTSD (post-traumatic stress disorder) (§6 AsylbLG). Translation is also covered Access to healthcare for migrants for psychotherapy. Asylum seekers and refugees On 18 July 2012, Germany’s Federal The Asylum Seekers Benefits Act233 Constitutional Court (BVerfG) declared (Asylbewerberleistungsgesetz – AsylbLG) that the Asylum Seekers Benefits Act of 235 regulates the entitlement to state subsidies 1993 contravenes the Constitution . The for medical care of refugees, asylum court said that the allowance for asylum seekers, some people who hold a residence seekers, which is 40% lower than that for permit for humanitarian reasons and people recipients of the very low Hartz IV welfare with a “temporary tolerated stay” benefits, the supposed subsistence level in (Duldung). Germany, was “evidently insufficient”. The first chamber of the BVG ordered an Unlike in most European countries, asylum immediate increase in the benefits. With seekers and refugees living in Germany do immediate effect, an unmarried adult not have the same access to healthcare as asylum seeker was to receive an allowance nationals. According to Section 2 of the AsylbLG, during their first 15 months on

232https://www.gkv- 234Law on Infectious diseases – 2000 spitzenverband.de/media/dokumente/krankenversic http://www.gesetze-im- herung_1/grundprinzipien_1/finanzierung/beitragsb internet.de/bundesrecht/ifsg/gesamt.pdf emessung/2013-09- https://www.bundesverfassungsgericht.de/SharedD 16_Grundsaetze_Beseitigung_Beitragsschulden_fin ocs/Entscheidungen/DE/2012/07/ls20120718_1bvl ale_Fassung_Normteil.pdf 001010.html 233Asylum Seekers benefit Act - 1993 http://www.gesetze-im- internet.de/bundesrecht/asylblg/gesamt.pdf

 Page 53 GERMANY of €359 instead of €224 per month, until the cards to asylum seekers. While the benefits German Parliament enacted a new law. are the same, this saves asylum seekers from having to request a health voucher Since 1 March 2015, after 15 months of every time they need access to care. It is having received benefits under the Asylum also much easier for health providers. Other Seekers Benefits Act, instead of the federal states are discussing the th previous 48 months, as regulated in the 12 introduction of this model in their own Book of the Social Security Code schemes239. (Sozialgesetzbuch)236, asylum seekers and refugees are entitled to welfare benefits and In most cities in Germany, a health voucher they may have access to healthcare under is valid for consultations with primary care the same conditions that apply to German physicians for three months. However, if citizens. However, a reduction in benefits the general practitioner refers an asylum may be applied for more than 48 months seeker or a refugee to a specialist, another (i.e. without any time-limit) to people who health voucher has to be requested. have “abused the law to affect the duration of their stay”237. If the doctor prescribes medication, the prescription states that the patient is exempt In emergency situations, asylum seekers from co-payments. When a chronic illness and refugees can go directly to the is diagnosed, a municipal public health emergency department for care. For non- department physician must confirm the emergency situations, asylum seekers in diagnosis and the need for treatment. many municipalities must first request a health voucher (Krankenschein) or health Pregnant asylum seekers and refugees insurance certificate from the municipal The Asylum Seekers Benefits Act contains social services department in order to gain a special provision for pregnant women and access to healthcare. This document allows for women who have recently given birth in them free access to the medical services its Section 4. They are entitled to “medical they are entitled to under the Asylum and nursing help and support”, including Seekers Act (AsylbLG)238; the care midwifery assistance. Furthermore, provider is then reimbursed directly. vaccination and “necessary preventive medical check-ups” must be provided. The municipal departments, which do not Therefore, they have the same access to have medical expertise, are in charge of health coverage for antenatal and postnatal delivering authorizations for care as German citizens covered by reimbursement of care. This causes a statutory health insurance. heterogeneous application of the law throughout the country, as municipalities Children of asylum seekers and refugees may interpret it in a more or less restrictive Children of asylum seekers and refugees are way and thus may not issue health vouchers subject to the same system as adults. under the same conditions. However, the law stipulates that children In contrast, some municipalities (Bremen, can receive other care meeting their specific Hamburg, Bavaria and Berlin in particular) needs (Section 6 AsylbLG), although this have agreements with statutory health provision does not specify the particular insurance funds and issue health insurance treatments that children may receive. As discussed above, Section 4 AsylbLG

236Social Security Code, Book XII 237http://www.asylumineurope.org/reports/country/ http://www.gesetze-im- germany/reception-conditions/health-care internet.de/bundesrecht/sgb_12/gesamt.pdf 238 Op. cit. note 233 239 Op. cit. note 237

 Page 54 GERMANY stipulates that asylum seekers and refugees  treatment for acute illnesses and who have been in Germany for less than 15 severe pain; months are entitled to vaccinations from the  antenatal and postnatal care; first day they arrive240. However,  recommended immunisations; vaccinations (Section 4.3 AsylbLG) are not  preventive medical tests; and compulsory in Germany, but merely  anonymous counselling and recommended241, with the exception of screening for infectious and sexually children at the time they enter child care transmitted diseases institutions, who have to be vaccinated. The  HIV/AIDS treatment, if the patient vaccines recommended by the WHO are cannot afford it free of charge. According to the Residence Act of 30 July It should be noted that, according to a 2004 (Aufenthaltsgesetz – AufenthG), UNICEF (United Nations International Section 87(2)2, “Public bodies [with the Children's Emergency Fund) report exception of schools and other educational published on 9 September 2014, children of and care establishments for young people] refugees in Germany do not have a standard shall notify the competent foreign of living equal to their German peers, due to nationals’ registration authority forthwith, discrimination in health and education if, in discharging their duties, they obtain 242 services . The study, “Children first and knowledge of246: foremost” states that, despite the daily difficulties they encounter, children of  the whereabouts of a foreign national refugees have inadequate governmental who does not possess the required support, which goes against the principles residence permit and whose expulsion of the United Nations Convention on the has not been suspended; Rights of the Child (CRC)243.  a breach of a geographical restriction;  any other grounds for expulsion Undocumented migrants According to the Asylum Seekers Benefits This means that public bodies, with the Act of 1 November 1993 (AsylbLG)244, exceptions mentioned above, have an undocumented migrants are afforded by law obligation to report any undocumented the same access to health services as asylum migrants encountered in the course of their seekers who have been in Germany for less work to the immigration authorities, which than 15 months245. goes completely against medical providers and social services ethics. These health services are less comprehensive than those provided by the In September 2009, thanks to intensive civil social security scheme, as they only cover: society advocacy, the Bundesrat issued an instruction247 on the application of the duty  emergency care to report. Hospital administrative and

240List of vaccinations gee-children-discriminated-against-in-germany- http://www.bmg.bund.de/themen/praevention/frueh unicef-says erkennung-und-vorsorge/impfungen.html 243 Ibid. 241 There are strong reservations against compulsory 244 Op. cit. note 233 public health measures in Germany, due to historical 245 Op. cit. note 52 reasons 246 Residence Act of 30 July 2004, Section 87 242 Z. Dogusan, “Refugee children discriminated http://www.gesetze-im- against in Germany, UNICEF says”, Daily Sabah, internet.de/englisch_aufenthg/englisch_aufenthg.ht 10 September 2014 ml#p1120 http://www.dailysabah.com/europe/2014/09/10/refu 247http://dip21.bundestag.de/dip21/brd/2009/0669- 09.pdf

 Page 55 GERMANY medical staff are bound by medical In order to obtain cost-free medication, the confidentiality, as are social services same process applies. The undocumented departments, if they obtain information on migrants must obtain a health voucher from the status of an undocumented migrant from the social welfare office. Office staff is members of the medical personnel. required to report the status of undocumented migrants to the foreign Even though, in principle, health coverage nationals’ registration authority, hindering for undocumented migrants extends beyond in practice their access to cost-free emergency services, in practice, coverage is medication250. Hence, only those with a limited to emergency services because the “temporary tolerated stay”251 are likely to procedure for reimbursing undocumented be able to access medicines free of migrants for the costs of emergency care is charge252. confidential, while the one used for non- emergency care is not. In practice, undocumented migrants do not have real access to healthcare. They can Indeed, for emergency care only have access to outpatient services from reimbursements, healthcare providers health providers who would waive their request reimbursement from social services fees. after the provision of care, a process that extends the medical confidentiality Undocumented pregnant women requirement to the social services In principle, undocumented pregnant department (as mentioned above). women have access to healthcare services in Nevertheless, the MdM Germany team has the same way as German women covered observed that, in practice, the by statutory health insurance. In practice, reimbursement request process is fairly cost-free healthcare services are provided to complicated because the social services pregnant women only in the case of department has to verify that the person is emergency care. indeed in need, and to do that, it needs to contact the immigration department. Indeed, because of police reporting requirements linked to non-emergency For non-emergencies, undocumented healthcare, undocumented pregnant women migrants seeking reimbursement must are afraid to go to hospitals, meaning that approach the social welfare office, whose only undocumented pregnant women with a staff has a duty to report them to the temporary tolerated stay can access administrative authorities and/or the antenatal and postnatal care. The temporary police248. This risk renders access to 249 tolerated stay is only granted for a limited non-emergency healthcare meaningless . time period, when the woman is considered As a result, undocumented migrants often “unfit to travel” (reiseunfähig - generally, choose neither to seek treatment nor to according to maternity leave law, six weeks bring their children for treatment, even in before and 12 weeks after delivery)253. With severe cases, for fear of being reported and this document, they do not have to pay the expelled from the country. costs of antenatal and postnatal care.

248 Op. cit. note 52 253Alyna C. Smith, Michele LeVoy, Report “The 249 Op. cit. note 52 Sexual And Reproductive Health Rights Of 250 Op. cit. note 52 Undocumented Migrants”, PICUM, February 2016 251 Op. cit. note 226 - Section 60 a (2) 3rd sentence http://picum.org/picum.org/uploads/publication/Sex (pregnancy is considered – with discretion – as ual%20and%20Reproductive%20Health%20Rights urgent personal grounds). _EN_FINAL.pdf 252 Op. cit. note 52

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However, for the first six months of their approved consultation centre at least pregnancy, undocumented women risk three days earlier; expulsion when applying for cost  the procedure is performed by a reimbursement so they do often not get doctor; and appropriate antenatal care (starting at 14th  the procedure is performed within 12 week at the latest). weeks of conception

It should also be noted that if pregnant In case of rape, which has to be certified by women do not obtain a temporary tolerated a medical professional, consultation is not stay, they have to pay all costs. obligatory, termination is possible after the 12th week and the cost of the termination is Children of undocumented migrants covered by the health insurance256. The children of undocumented migrants are concerned by the provisions of the Asylum A termination of pregnancy beyond 12 Seekers Benefit Act254, so they should have weeks is possible, however, if it is the same access to healthcare as the children medically indicated, that is, if the woman’s of asylum seekers. In theory, immunisations physical or mental health renders it for children of undocumented migrants necessary and the risk cannot be dealt with must be provided free of charge. However, by other means. This provision also applies due to the duty to report, undocumented in cases where there is a risk of serious families are hindered from seeking out congenital malformation. In medically primary and secondary healthcare. indicated cases, the cost of the termination is covered by the health insurance. In practice, most children of undocumented migrants do not have access to In case of termination of pregnancy without immunisation. They face paying the full criminal or medical indication, the cost of costs of the medical consultation (around termination of pregnancy is borne entirely €45) and the costs of the vaccine (€70 per by the patient and is not reimbursed. A vaccine). medical abortion costs around 350€. The examination before the termination and Termination of pregnancy treatment of complications are however, Section 218a of the Criminal Code255, covered by the health insurer257. which resulted from the adoption of the 21 August 1995 law on antenatal assistance Women whose income minus rent and and aid to families, indicates the conditions children’s allowance is below €1,036 per under which termination of pregnancy is month can be reimbursed by social security. not considered illegal. Theoretically, female asylum seekers and undocumented women are also entitled to This section specifies that termination of reimbursement through a special pregnancy is not punishable if all of the exceptional remittance from the GKV. following conditions are met: However, access remains very difficult for undocumented women, due to the need for  the woman requests the procedure; a health voucher and the risk of being  the woman presents a medical reported, as discussed above. certificate proving that she went to an

254 Op. cit. note 233 256http://www.familienplanung.de/beratung/schwan 255 Criminal Code s218a gerschaftsabbruch/rechtslage-und-indikationen/ http://www.gesetze-im- 257 Ibid. internet.de/stgb/__218a.html

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Indeed, the experience of MdM DE teams welfare office to go back to their home has shown that it is very difficult for female country. Sometimes, the Ministry of Labour asylum seekers and undocumented women and Social Affairs covers the costs of the to obtain reimbursement for termination of travel. pregnancy. Unaccompanied minors EU citizens Unaccompanied minors’ access to Access to health insurance and welfare healthcare is foreseen, by and large, in benefits for EU citizens depends on their parallel with their care requirements based working situation and on the reason of their on their residence status and their care stay in Germany. Job seekers and needs due to the absence of anyone with individuals who are not capable of parental responsibility for them261. “If employment (for health reasons or on the assistance is granted in accordance with basis of immigration law) are not entitled to Sections 33 to 35 or Section 35a subsection welfare benefits, pursuant to Section 23 of 2 Nos. 3 or 4 [Social Security Code the 12th book of the German Social Security Book VIII262], health benefits must also be Code258. They can obtain health coverage granted as specified in Sections 47 to 52 of through private insurance if they can afford the of the 12th book of the German Social the contributions. Security Code263. Pursuant to the 2004 European Directive The health benefits granted shall meet all of 2004/38/EC259, after three month of the requirements in each individual case. residence in Germany, if an EU citizen has They have to cover any additional charges insufficient funds and no insurance to cover and contributions (Section 40 Social his healthcare, he/she will be considered as Security Code Book VIII264). This also an undocumented migrant and will then be covers any need for psychological care, entitled to the same rights as undocumented including translation fees265. third country nationals. Unaccompanied minors recognised as In any case, EU citizens are entitled to asylum seekers, who have been granted assistance in case of emergencies, subsidiary protection or refugee status and according to the 12th book of the German those for whom a prohibition of expulsion Social Security Code260. This can mean, has been established are entitled to health depending on the circumstances, that the benefits based on the sections of the Social costs for an urgent operation might be Security Code, commensurate with their reimbursed by social services. situation, even if it has been established that they do not need assistance from the Youth Healthcare related to pregnancy is not seen Welfare Office266. as emergency care. Therefore, usually, pregnant EU citizens who have lost the right The situation is different in respect of to reside are forced or advised by the social unaccompanied minors whose expulsion

258 Op. cit. note 236 minderjaehrige-in- 259 Op. cit. note 189 deutschland.pdf?__blob=publicationFile 260 Op. cit. note 236 262Social Security Code, Book VIII 261 A. Muller, “Unaccompanied Minors http://www.gesetze-im- in Germany Focus-Study by the German National internet.de/bundesrecht/sgb_8/gesamt.pdf Contact Point for the European Migration Network 263 Op. cit. Note 236 (EMN)”, Federal Office for Migration and 264 Op. cit. note 262 Refugees, Nuremberg, 2014, 265 Op. cit. note 261 https://www.bamf.de/SharedDocs/Anlagen/EN/Pub 266 Op. cit. note 259 likationen/EMN/Studien/wp60-emn-

 Page 58 GERMANY has been suspended or who have been origin, a residence permit for humanitarian granted permission to stay for the duration reasons can be issued, in accordance with of the asylum procedure and who have not Section 25.3 AufenthG and Section 60.7 been granted any assistance by the Youth AufenthG. This residence permit is checked Welfare Office. They are merely entitled to by the Federal Office for Migration and medical care under the Asylum Seekers Refugees (Bundesamt für Migration und Benefits Act267. Therefore, they have access Flüchtlinge) in the framework of the to health packages as quoted above. asylum procedure or readmission procedure of a previous asylum request. Protection of seriously ill foreign To obtain a residence permit for nationals humanitarian reasons, the applicant must According to Section 60a §2 of the demonstrate to the relevant authorities that Residence Act (AufenthG)268, a foreign there is a serious risk to his/her health in national may be granted a temporary their country of origin. Data on the national tolerated stay (Duldung) if his/her health system and the person’s economic continued presence in Germany is and social situation must be presented. necessary on urgent humanitarian or personal grounds (including medical Finally, certain seriously ill foreigners can grounds) or due to substantial public obtain a residence permit “on hardship interests. As a result, the expulsion of a grounds”. However, this request concerns foreign national must be suspended for as extremely specific situations, examined on long as expulsion is impossible in fact or in a case-by-case basis and does not include law. However, no residence permit is medical grounds. It applies to people who, granted. Since March 2016, stricter in theory, cannot stay in Germany, but who regulations were passed for proving that a are granted a residence permit for special reasons, in accordance with Section 23 of medical condition makes an expulsion 269 impossible (AufenthG §60a Section 2c and the Residence Act . 2d). The evolution of asylum law in 2016270, In the case of chronic diseases, the foreign which foresees a faster asylum procedure of nationals’ registration office about three weeks, makes it extremely (Ausländerbehörde) may grant a residence difficult for asylum seekers to present this information in time. Several countries have permit according to Section 25.5 AufenthG 271 if a doctor declares that a person is unable been classified as “safe countries” , to travel or cannot stop treatment in increasing the number of asylum seekers Germany. The temporary permit to reside affected by the fast asylum procedure. ceases to apply once the patient is fit to travel again. Prevention and treatment of infectious diseases In addition, if the patient is considered able According to the Section 19 of the law on to travel despite their illness, but the 272 treatment required by their condition is not infectious diseases , everyone, including possible anywhere in their country of undocumented migrants is entitled to counselling and testing for transmissible

267 Op. cit. note 261 271http://www.fluechtlingsinfo- 268 Op. cit. note 246 berlin.de/fr/pdf/1808039_GE_Maghreb_sicher.pdf 269 Op. cit. note 246 272Law on Preventing and Combating 270http://www.bgbl.de/xaver/bgbl/start.xav?startbk= infectious diseases in humans of 20 July 2000 Bundesanzeiger_BGBl&jumpTo=bgbl116s0390.pd (Protection against Infection Act), f http://www.gesetze-im-internet.de/ifsg/__19.html

 Page 59 GERMANY 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 special counselling services for people with STIs (Beratungsstelle für sexuell übertragbare Krankheiten), accessible to all, regardless of legal status. These services were launched many years ago, at first for sex workers and drug users. They offer anonymous services, generally testing and counselling and sometimes consultation with a doctor. Access to HIV and hepatitis treatment, however, is far from being accessible to undocumented migrants in practice, as patients are asked to apply for the voucher.

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Organisation and funding of Greek GREECE healthcare system The Greek health care system (Ethniko National Health System Systima Ygeias – ESY) comprises elements from both the public and private sectors278. Constitutional basis 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 coexist279. 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”273. revenue for the social insurance funds is constituted by the contributions of Historical background employees and employers (including contributions by the State as an The founding law of the Greek health 280 274 employer) . The State budget, via direct system (Law 1397/1983) was passed in and indirect tax revenues, has to cover September 1983 and to date is considered to administration expenditures, funding health be the most significant attempt to make a centres and rural surgeries, providing radical change in the health sector, which subsidies to public hospitals and insurance would gradually lead to a comprehensive 275 funds, investing in capital stock and funding public healthcare system . This law can be health education281. characterized as the foundation of the Greek healthcare system276. The private sector includes profit-making hospitals, diagnostic centres and The philosophy of the law that introduced independent practices, financed mainly the notion of the National Health System in from out-of-pocket payments and, to a its Article 1 was based on the principle that lesser extent, by private health insurance. health is a social good and it should be provided free of charge at the point of Recent structural reforms of the delivery by the state equitably for everyone, healthcare system regardless of social and economic status277. According to its provisions, there should be Before 2011, there were a lot of insurance universal coverage, equal access to health funds providing coverage for primary, services and the State should be fully secondary and pharmaceutical care and in responsible for the provision of services to some cases also coverage for glasses, the population. diagnostic and laboratory tests. The Private Employees’ Fund (Idryma Kinonikon Asfaliseon – IKA) was the largest social health insurance fund, offering the most comprehensive package, which included

273Constitution of Greece of 1975 (last amendment http://www.euro.who.int/__data/assets/pdf_file/000 of 2008), 4/130729/e94660.pdf http://www.hri.org/MFA/syntagma/artcl25.html 276 Ibid. 274http://www.mednet.gr/eeeaa/pdf/law-1397- 277 Op. cit. note 275 1983.pdf 278 Op. cit. note 275 275C. Economou,”Greece: Health system review”, 279 Op. cit. note 275 Health Systems in Transition, 2010, vol. 12, No. 7, 280 Op. cit. note 275 281 Op. cit. note 275

 Page 61 GREECE almost everything except cosmetic surgery. of the population. Their control and In addition, most of the funds provided management were transferred from income allowances for lost income due to EOPPY to Regional Health illness, maternity benefits and others282. Authorities in 2014;  a private insurance system (mainly The establishment of the National consisting of complementary Organisation for Healthcare Provision insurance) and a private delivery 283 (EOPYY) by Law 3918/11 was system which consist of private published on 2 March 2011 and it started hospitals, diagnostic centres and operating on 1 January 2012. This health private doctors, most of whom also insurance reform unified all social and have contracts with EOPYY287. health insurance funds into a central health fund, EOPYY, which is supervised by the Ministry of Health. Functioning of Greek healthcare system In 2014, the Greek Parliament adopted a Primary healthcare is a key element of the primary healthcare law (Law 4238/14284), Greek health system, acting both as a point based on the core values of the Declaration of first contact and a gatekeeping of Alma-Ata, to ensure better health of the mechanism288. Primary healthcare in Greek people285. With this law, Greece Greece is provided by both National Health intended to build a comprehensive and System and EOPYY units. However, a strong nation-wide primary healthcare large number of self-employed health service286. professionals exist289. In a nutshell, the Greek health system is More specifically, primary healthcare relies now a mixture of three main components: on health centres and private or public hospitals and outpatient clinics, assigned to  a tax-based National Health System the National Health System; EOPYY’s that is responsible for public hospitals polyclinics and medical centres; and and health centres in rural and urban doctors, nurses, pharmacists, areas; physiotherapists and other self-employed  an extensive network of polyclinics health professionals contracted with the (previously belonging to insurance EOPYY290. The current scheme allows free funds but transferred to EOPYY), choice of provider but not of the insurer291. financed by insurance contributions paid by employees and employers. Structurally, there is a shortage of general These units are mainly located in practitioners (GPs) in Greece compared to urban areas, covering more than 50% specialists, there are few nurses per

282 Op. cit. note 255 model needed?”, BMC Health Services Research, 283Law 3918/11 – 2011 2014, https://www.taxheaven.gr/laws/law/index/law/302 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC425 284Law 4238/14 – 2014 5662/pdf/12913_2014_Article_583.pdf http://www.moh.gov.gr/articles/newspaper/nomoth 288 Ibid. esia-kanonismoi/3246-nomothesia-hlektronikhs- 289 Op. cit. note 287 ygeias?fdl=8084 290 Op. cit. note 287 285http://www.euro.who.int/en/countries/greece/new 291 S. Karakolias and N. Polyzos, “The Newly s/news/2014/02/greece-launches-new-primary- Established Unified Healthcare Fund (EOPYY): health-care-law Current Situation and Proposed Structural Changes, 286 Ibid. towards an Upgraded Model of Primary Health Care, 287 N. Polyzos et al., “The introduction of Greek in Greece”, Scientific Research, 2014, Central Health Fund: Has the reform met its goal in http://www.scirp.org/journal/PaperDownload.aspx? the sector of Primary Health Care or is there a new paperID=44338

 Page 62 GREECE thousand people and urban areas attract Accessing Greece healthcare system most providers and patients292. All Greek citizens are entitled to access The 2011 reform in the Greek health social healthcare free at the point of delivery. insurance market resulted in a unified Authorised residents in Greece are entitled central fund (National Organisation for to the same access to healthcare as Greek Healthcare Provision―EOPYY) which citizens. Formal access to the free services simultaneously assumed the majority of of the National Health System is dependent primary health care provision293. on registered employment and regular status, unless one is part of one of the EOPYY’s primary mission is the provision groups defined by the 4368/2016 law of of health services to employed members, February 2016 (see next section). pensioners and their family dependants registered with the merged healthcare Although the EOPYY could theoretically funds. EOPYY unified the majority of reduce administrative costs and improve healthcare funds, amongst them the Private access to healthcare, a series of immediate Employees’ Fund (IKA), the Public measures transferred a portion of costs to Employees’ Fund (OPAD), the Farmers’ the insured population299. For example, Fund (OGA) and the Self- EOPYY immediately restricted access to employed/Entrepreneurs’ Fund (OAEE)294. many essential health services, such as medical care, glasses, dental care and As a result, EOPYY covers over 98% of physiotherapy services300. people with health coverage295. The new fund has also increased co- For primary healthcare, EOPYY also payments for private hospital services, undertakes the operational coordination and starting at 20% and reaching 50% for cooperation between (public and private) farmers. These measures increased the healthcare units and health professionals insured population’s out-of-pocket constituting the primary healthcare participation at a time when their total network296. income has decreased by about 35%301. Generally, Greek citizens seem to prefer The former government started abolishing inpatient/hospital primary healthcare EOPYY’s existing primary care structures services, as they consider them more and services, converting it from a medical effective297. In Greece, the system is based service supplier with its own doctors and on a “free-choice” model, which means dentists into a medical services purchasing each patient can chose freely any healthcare body302. provider of the National Health System or

EOPPY298. EOPYY provides free primary care services to the insured population in urban areas through its salary-based healthcare

292 WHO regional Office for Europe, Profile for 298 Op. cit. note 287 health and Well-Being – Greece, 2016 299D. Niakas, “Greek economic crisis and health http://www.euro.who.int/__data/assets/pdf_file/001 reforms : correcting the wrong prescription”, 0/308836/Profile-Health-Well-being- International Journal of Health Services, Vol 43, No Greece.pdf?ua=1 4, 2013, 293 Ibid. http://www.iatronet.gr/photos/enimerosi/niakas.pdf 294 Op. cit. note 292 300 Ibid. 295 Op. cit. note 287 301 Op. cit. note 299 296 Op. cit. note 287 302 Op. cit. note 299 297 Op. cit. note 287

 Page 63 GREECE professionals (some professionals serve on members (spouse and dependent a contractual basis)303. children)  Vulnerable groups, regardless of their The new fund is obliged to cover all legal status i. e. children up to 18 citizens, even those who are unemployed or years old, pregnant women, bankrupt (i.e. providing free access to chronically ill people, beneficiaries doctors and medicines, regardless of of a form of international protection, insurance status). Those who are without holders of a residence permit for health coverage because of the economic humanitarian reasons, asylum seekers crisis or other reasons could be covered by and their families, persons the public budget or other sources (e.g. accommodated in mental units, European Social Fund) on a pre-determined victims of certain crimes, persons 304 annual basis . However, these budgets with heavy disabilities, seriously ill targeted only a small part of this population people, inmates…307 group. Thus, a new law was adopted on 20 February 2016, opening access to healthcare to the uninsured population and The 4368/2016 law also simplified the vulnerable individuals (see next section). administrative procedure to obtain healthcare for Greek nationals, who now Positive reform simply have to present their social security number to obtain care; and abolished the Law 4368/2016 of 20 February 2016 committees that used to determine on a A major law concerning healthcare was case-by-case basis who was entitled to adopted on 20 February 2016: Law healthcare benefits. 4368/2016305, implemented by the joint ministerial decision n° As to foreigners entitled to free healthcare A3(c)/GP/oik.25132/2016 on 4 April under Section 2 of Article 33 of Law 2016306, opened access to the public health 4368/2016, who do not have an SSN, they system to uninsured and vulnerable people are granted a special Foreigner Healthcare and minimized the bureaucratic procedures. card (K.Y.P.A.) which they have to display to obtain healthcare. Pursuant to Article 3 of Pursuant to Article 33 of the 4368/2016 law, the joint ministerial decision implementing uninsured people and vulnerable social Law 4368/2016, the K.Y.P.A. is valid for groups now have free access to public six month from the date of issue, and one health facilities, nursing and medical year if its holder is a pregnant woman. services. In addition of opening rights to free Section 2 of Article 33 further provides that healthcare, the joint ministerial decision308 beneficiaries of the rights stated in Section implementing law 4368 also introduced a 1 are: system combining income, social and clinical criteria to exempt vulnerable social  Uninsured Greek nationals, groups from pharmaceutical spending. authorized residents and their family Thus, vulnerable groups as chronically ill or disabled people and individuals and

303 Op. cit. note 299 http://www.opengov.gr/yyka/wp- 304 Op. cit. note 299 content/uploads/downloads/2015/04/sxedio-kya- 305 Law 4368/2016 - 2016 anasfalistwn.pdf https://www.minedu.gov.gr/publications/docs2016/ 307 For the detailed list, see article 3 of the Joint %CE%A6%CE%95%CE%9A.pdf ministerial decision op. cit. note 306 306Joint ministerial decision implementing law 308 Op. cit. note 306 4368/2016

 Page 64 GREECE families whose income does not exceed centres or regional medical centres. €200 monthly for a single person, €300 for Medication provided on prescription from a couples or persons with a dependent medical doctor serving in one of the above member plus €600 for each further institutions and acknowledged by their dependents are exempted from medication director. c. Hospital-based care in public costs309. hospitals, class C of hospitalisation. 2. In all cases, emergency aid shall be provided This reform, allowing thousands of people to applicants free of charge (…)”311. to access free healthcare, follows the Common ministerial decree no In principle, asylum seekers and refugees Υ4α/ΓΠ/οικ.48985/2014 of 2014, which have free access to hospitals and medical opened access to healthcare for a part of care. However, Greece is witnessing an uninsured Greek citizens and authorized unprecedented increase in the inflow of residents. refugees and migrants to its territory and, even though the Greek state and population Access to healthcare for migrants showed great solidarity with asylum seekers, the ability of the Greek health Asylum seekers and refugees system to provide adequate health care to refugees upon entry is severely stretched. According to article 33 Section 2 of the 310 Thus, asylum seekers and refugees still 4368/2016 law, asylum seekers and encounter difficulties in gaining access to refugees are considered as vulnerable healthcare. groups and thus have access to the public healthcare system for free, same as destitute Pregnant asylum seekers and refugees Greek nationals. Pregnant women seeking asylum and To access free healthcare, asylum seekers pregnant refugees are entitled to free must hold and display a special Foreigner antenatal and postnatal care, delivery care Healthcare Card (K.Y.P.A.). and abortion312. Before the 2016 law, the Common Children of asylum seekers and refugees ministerial decision ΚΥΑ Υ4α/48566/05 Children of asylum seekers have the same provided for free healthcare for asylum access to primary and secondary healthcare, seekers and refugees. including immunisation as nationals and Moreover, Article 14 of the Presidential authorised residents. Decree 220/2007 on the transposition into Undocumented migrants the Greek legislation of Council Directive 2003/9/EC from January 27, 2003 laying In Greece, there is a legislation prohibiting down minimum standards for the reception care beyond emergency care for adult of asylum seekers, already stated that undocumented migrants. However, the new “applicants [for refugee status] shall law 4368/2016 introduced exceptions to receive free of charge the necessary health, this rule, allowing the most vulnerable pharmaceutical and hospital care, on categories of people to access healthcare. condition that they are uninsured and financially indigent. Such care shall include: a. Clinical and medical examinations in public hospitals, health

309 Article 6, joint ministerial decision n° 311Presidential Decree of 2007, A3(c)/GP/oik.25132/2016 Op. cit. note 306 http://www.refworld.org/docid/49676abb2.html 310 Op. cit. note 306 312 Law 4368/2016, op. cit. note 305

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The new Migration Code, implemented by 4368/2016 law315 and Article 3 of the joint Law 4251/2014313 and repealing Law ministerial decision implementing it316. 3386/2005, continues to prohibit healthcare for undocumented migrants314. For instance, are entitled to free healthcare, undocumented: In particular, Article 26§1 Law 4251/2014 states that “public services, legal entities of  Pregnant women public law, local authorities, public utilities  Children and social security organisations shall not  Chronically ill individuals provide their services to third-country  Seriously ill individuals nationals who do not have a passport or any  Victims of severe crimes other travel document recognised by  Disabled individuals… international conventions, an entry visa or a residence permit and, generally, who Undocumented pregnant women cannot prove that they have entered and Pursuant to the 4368/2016 law317, reside legally in Greece. Third-country undocumented pregnant women are entitled nationals who are objectively deprived of to free healthcare. Indeed, they are their passport shall be given the right to considered as one of the vulnerable groups transact with the agencies referred to eligible for free healthcare independently of above, simply by showing their residence the person’s legal status. permit”. It should be noted that Article 41 of Law In addition, Article 26.2a states that “the 3907/2011 establishes that undocumented arrangements of the previous paragraph pregnant women may not be removed from shall not apply to hospitals, treatment the territory during their pregnancy and for centres and clinics in the case of third- six months after delivery, unless they are country minors and nationals who are considered to pose a risk for national urgently admitted for hospitalisation and security, public order or public health. childbirth, and the social security structures which operate under local Children of undocumented migrants authorities”. Children of undocumented migrants are entitled to free healthcare until they are 18 It should be noted that Law 2910/2001 years old, as stated in the 4368/2016 law318. expressly excludes minors of the They are indeed considered as a vulnerable prohibition to provide healthcare. group.

Since April 2016, undocumented migrants EU citizens can be entitled to free healthcare if they In accordance with Directive belong to one of the vulnerable groups 2004/38/EC319 of 29 April 2004, after three defined by Article 33, section 2 of the months of residency in Greece, EU citizens with no resources and/or health coverage are considered to be undocumented

313Law 4251/2014 - 2014 http://www.eliamep.gr/wp- http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/ content/uploads/2014/10/Migration-in-Greece- 100567/120684/F- Recent-Developments-2014_2.pdf 12516934/GRC100567%20Grk.pdf 315 Op. cit. note 305 314 A. Triandafyllidou, “Migration in Greece Recent 316 Op. cit. note 306 Developments in 2014”, Hellenic Foundation For 317 Op. cit. note 305 European and Foreign Policy, 2014, 318 Op. cite. note 305 319 Op. Cit. note 189

 Page 66 GREECE migrants. They have the same access to Decision KYA 1982/2016324 provides that healthcare as undocumented third-country age assessment should first be performed by nationals. a paediatrician then by a psychologist and social worker, in most cases, carpal X-ray Unaccompanied minors and dental examination, which should be According to Article 19 of Directive the last resort, are used to assess the age. 2003/9/EC, which sets out minimum Greek law does not prohibit detention of standards for the reception of asylum unaccompanied minors who enter Greece seekers, unaccompanied minors must be without valid papers, although it enjoins placed in accommodation centres with authorities to “avoid it” (Article 13(6) (c) special provisions for minors, a condition PD 114/2010; Article 46 (10)b of law incorporated in Article 11-3 of the Directive 4375/2016). Unaccompanied children can 2013/33/EC320 which provides for a general be detained only until a place in a special ban on detaining minors except under facility for minors is found325. What is “exceptional circumstances”. more, Article 32 of Law No 3907/2011326 For each unaccompanied child, the Public (implementing Directive 2008/115/EC) Prosecutor for Children or the First Instance stipulates that minors and families with Prosecutor is informed and acts as the minor children should only be detained as a temporary guardian for the child and measure of last resort, and only if no other undertakes the necessary actions for the adequate but less burdensome measures can appointment of a guardian321. Given the be taken, and for the shortest appropriate particular characteristics of unaccompanied period of time. children, as well as their numbers, the Yet, the authorities detain unaccompanied effective exercise of guardianship functions children, either on arrival or when they are by temporary or permanent guardians found without valid documents, for periods becomes particularly difficult, resulting in of ranging from a few hours to several days children not being able to enjoy the or months327. The reasons for detaining protection and rights enshrined in the children for longer or shorter periods appear Convention of the Rights of the Child322. to be arbitrary328. The detention of children Besides, when arriving in Greece, is also caused by the fact that the large unaccompanied children are not accurately influx of asylum seekers to Greece has or adequately identified, including through overwhelmed existing centres. proper age assessment procedures323. Indeed, although the Common Ministerial

320Directive 2013/33/EC - 2013 detention/detention- http://www.refworld.org/docid/51d29db54.html vulnerable#sthash.iSUsTK8H.dpuf 321 United Nations High Commissioner for Refugees 326 Law 3907/2011 Greece, Current Issues of Refugee Protection in https://www.e-nomothesia.gr/kat-allodapoi/n-3907- Greece, July 2013, 2011.html https://www.unhcr.gr/fileadmin/Greece/News/2013 327 Platform for International Cooperation on /PCjuly/Greece_Positions_July_2013_EN.pdf Undocumented Migrants (PICUM), 322 Ibid. Recommendations to the European Union to 323 Op. cit. note 321 Urgently Address Criminalisation and Violence 324 Ministerial Decision KYA 1982/2016 – 2016 Against Migrants in Greece, Brussels, 2014, http://asylo.gov.gr/wp- http://picum.org/picum.org/uploads/publication/Rec content/uploads/2016/02/%CE%91%CE%9D%CE ommendations%20to%20address%20criminalisatio %97%CE%9B%CE%99%CE%9A%CE%9F%CE n%20and%20violence%20against%20migrants%20 %A4%CE%97%CE%A4%CE%91.pdf in%20Greece_Reprint%20May%202014_2.pdf 325http://www.asylumineurope.org/reports/country/ 328 Ibid. greece/detention-asylum-seekers/legal-framework-

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Reception capacity for children is Indeed, they are considered as particularly insufficient : at national level, there are 432 vulnerable. places in special centres for unaccompanied minors and 240 unaccompanied children Pursuant to Article 19A of Law 4251/2014, are detained in closed premises and police persons following an approved legal stations due to lack of accommodation therapeutic mental dependency program, as facilities (as of 30 March 2016)329. demonstrated by a written confirmation from the Director of the program can obtain There is no institutionalised procedure for a residence permit for one year, renewable determining the best interests of the child, a up to two years. guiding principle of the protection of children according to international Prevention and treatment of standards and Greece’s obligations as a infectious diseases signatory to the CRC330. As a result of existing shortcomings in Greece’s child Detention on public health grounds protection system, unaccompanied minors remain in administrative detention, often Article 76 of Law 3386/2005, as amended 335 for a long time, in contravention of by Law 4075 of April 2012 (remaining in applicable national and international law331. force pursuant to article 139 (2) of Law 4251/2014) provides for the detention of What is more, unaccompanied children are migrants and asylum seekers on public often detained in unsanitary and degrading health grounds. The law permits the conditions in overcrowded spaces. Most of detention for up to 18 months of a migrant the cells children are detained in are dirty, or asylum seeker who represents a danger to bug-infested and do not include proper public health336: if they are suffering from beds332. an infectious disease; if they belong to a group vulnerable to infectious diseases Despite prohibitions in international and (with assessment permissible on the basis of Greek law, some of the minors, particularly country of origin); if they are an intravenous when there is a doubt concerning their age, drug user or a sex worker; or if they live in share their cell with adults, which puts them conditions that do not meet minimum 333 in danger of physical and sexual abuse . standards of hygiene337. MdM EL team reports that in some cases the decision was Protection of seriously ill foreign taken exclusively by Police officers. nationals HIV testing and treatment Seriously ill foreign nationals are entitled to free healthcare in public facilities, Since the Circular Υ4α/οικ 93443/11 of 18 338 independently of their legal status pursuant August 2011 was adopted, HIV testing to article 33 of the 4368/2016 law334. and treatment are free for all people living in Greece, regardless of their legal status

329 Press release, Athens, Intervention by the 334 Op. cit. note 305 Ombudsman for unaccompanied children, refugees 335Law 4075/2012 - 2012 and immigrants, March 30, 2016 http://www.taxheaven.gr/laws/law/index/law/429 http://www.synigoros.gr/resources/dt-asynodeytoi- 336http://www.globaldetentionproject.org/countries anilikoi-3032016.pdf /europe/greece 330 Op. cit. note 321 337 Op. cit. note 321 331 Op. cit. note 321 338Circular Υ4α/οικ 93443/11 332 Human Rights Watch, “Why are you keeping me http://www.keelpno.gr/Portals/0/Αρχεία/Τμήμα here” Unaccompanied Children detained in Greece, Παρεμβάσεων στην Κοινότητα/γραφειο 8 September 2016 ψυχοκοινωνικής στήριξης/Egkyklios 18082011.pdf 333 Ibid.

 Page 68 GREECE 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 2015339 repealed the restoration of measure 39A of the Health Act. This law was implemented by 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 HIV tests on citizens with the help of security forces. Several women were detained during the election campaign in 2012. They were arrested and then forced to undergo HIV screening and were detained for several months merely because they were HIV positive. It is thus a positive development that the current Greek authorities have decided to repeal this measure which violated human rights and affected human dignity.

339http://omniatv.com/images/easyblog_images/62/f ek-katarghsh-39A.pdf

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living in Ireland. The HSE is directly IRELAND accountable to the Minister for Health.

National Health System Health Service Executive is divided into four administrative regions (HSE Dublin Mid-Leinster, HSE Dublin North-East, Basis, Organisation and funding of Irish HSE South and HSE West) and manages the healthcare system delivery of the entire health service as a 345 Basis single national entity . The Irish Constitution or legislation does The HSE organisational structure is divided not contain any express recognition of into three main areas: Health and Personal health as a human right. Social Services, Support Services and Reform and Innovation. Health and However, some judicial statements suggest Personal Social Services is further divided that there is an un-enumerated right to into three service delivery units: health protected by the Constitution. In the case of Heeney vs Dublin Corporation340,  National Hospitals Office which the Irish Supreme Court recognized that manages acute hospital and “there is a hierarchy of constitutional rights ambulance services and at the top of the list is the right to life,  Primary, Community and Continuing followed by the right to health”341. In Care which delivers health and another matter RE Article 26 of the personal social services in the Constitution and the Health (Amendment) community and other settings (No.2) Bill 2004, it was argued that a  Population Health which promotes constitutional right to healthcare could be and protects the health of the entire derived from the right to life, the right to population346. personal dignity and /or the right to bodily integrity. Yet, in 2005342, the Irish Courts From primary to acute healthcare rejected the existence of the right to health Primary care plays a central role in the where that would create an obligation upon provision of healthcare services in Ireland the state to provide free healthcare.343 and is delivered by private General Practitioners (GPs), doctors who provide Organisation health services to people in their surgery or Healthcare in Ireland is a two-tier system: in the patient’s home. GPs are also private and public healthcare systems. The gatekeepers for hospital treatment, public healthcare system is governed by the providing referral letters to acute care for Health Act 2004344. This Act established the patients. GPs are located in the Health Service Executive (HSE), the body community in single or multi person with the responsibility for both the budget practices. If the patient does not have a and the management and provision of health Medical Card or a GP Visit Card, the and personal social services to everyone service has to be paid for by the patient. The charges for GP visits vary from €30 to €65

340 Heeney v. Dublin Corporation [1998] IESC 26 343 Ibid. (17th August, 1998) 344http://www.irishstatutebook.ie/eli/2004/act/42/en 341Malcolm Longford, Social Rights Jurisprudence. acted/en/html Emerging Trends in International and Comparative 345http://www.hse.ie/eng/services/publications/corp Law, Cambridge University Press, 2009 orate/Towards_Better_Healthcare.pdf 342 Unreported Supreme Court decision of 16th 346 Ibid. February 2005

 Page 70 IRELAND across state. The return visits may be Funding charged at the discounted rate (around €30). In Ireland, the healthcare system is Primary, community and continuing care predominantly tax funded with additional (PCCC) is provided by a range of health contributions from private health insurance professionals such as community-based and out-of-pocket payments such as pharmacists, public health nurses, household expenditure on GP visits healthcare assistants, social workers, home payments, pharmaceuticals and private/ help, midwifes and the like. There are also public hospital stays. Approximately 70% public and private facilities that provide non of public funding is made up from taxation – acute long term healthcare. Such long stay and 30% from private healthcare insurance. public units include homes, district and Further to this, the Irish government community hospitals, and HSE welfare oversees a medical card system for low- homes. income members of the population. Although all Irish individuals are entitled to Acute healthcare services are delivered in public healthcare, many choose to take out the HSE public, voluntary public and private health insurance to top up their private hospitals. Voluntary hospitals are entitlements to obtain faster and more primarily financed by the State but may be advanced medical treatments. The owned and operated by religious orders or downside to this system is the inequitable lay boards of governors347. level of access to treatment and the long waiting lists349. Private healthcare system is provided mainly by GPs and private hospitals. The In June 2015, 2.118 million, or 46% of the private sector also manages the private Irish population, have private health nursing homes. A substantial amount of insurance.350 While the level of healthcare private healthcare takes place within the coverage depends on the purchased package state – funded public hospital infrastructure, of health insurance, most private health which is quite unique in Ireland. The private insurance cover the hospital related costs, provision of healthcare services is not the primary care. The Irish health integrated into the public health system. For insurance market is mainly regulated by the example, under the National Health Health Insurance Acts 1994351 to 2014352 Strategy, public hospitals are mandated to and Regulations made under those Acts. ensure that 20% of hospital beds are Health Insurance Authority regulates the reserved for private patients. A similar private health insurance providers. situation exists in the primary provision of care: GPs have both private and public Reform of the Health Service patients348. The Irish government initiated a major reform programme of the health system. The goal is to introduce a single-tier health

347 Amnesty International, Healthcare Guaranteed? 349EMN Report, Migrant Access to Social Security The Right to Health in Ireland, June 2011 and Healthcare: Policies and Practice in Ireland, http://www.amnesty.ie/sites/default/files/HRII/Heal 2014 thcare%20Guaranteed%20- https://www.esri.ie/pubs/BKMNEXT261.pdf %20The%20Right%20to%20Health%20in%20Irela 350http://health.gov.ie/future-health/financial- nd.pdf reform/private-health-insurance-2/ 348http://www.hse.ie/eng/services/publications/corp 351http://www.irishstatutebook.ie/eli/1994/act/16/en orate/Towards_Better_Healthcare.pdf acted/en/html 352http://www.irishstatutebook.ie/eli/2014/act/42/en acted/en/html

 Page 71 IRELAND service, supported by Universal Health requires that an applicant has been resident Insurance (UHI) to achieve equal access to or intends to be resident in the State for at healthcare based on medical needs and not least one year.357 on income. This health system will be based on a multi-payer insurer model with The “ordinarily resident” condition was competing insurers. introduced by way of the Health Amendment Act 1991358 as the criterion to Department of Health publication Future determine eligibility for healthcare services Health- A Strategic Framework for Reform in Ireland. As it was not precisely defined, of the Health Service 2012-2015 details the guidelines on the Ordinarily Resident actions to be taken to deliver the reform353, Condition for eligibility for health services as the suppression of the distinction were issued by the Department of Health in between “public” and “private” patients, July 1992 (Circular 13/92) to Health Boards universal GP care, insurance for a standard and Voluntary/ Joint Board Hospitals359. package of curative health services for everyone and an Activity Based Funding HSE is responsible to determine whether a (ABF)354 of hospitals rather than a block person meets the “ordinary residence” grant allocation355. condition. Assessment of “ordinary residence” is made at the point of payment / The government aims to the realization of non-payment for a service. If a person this reform by 2019. For now, a Child seeking to access the service fails to supply Family Agency has been established, insurance details or fails to demonstrate that Activity Based Funding implementation he or she is covered under the EU rules, the commenced in 2014, a healthcare Pricing hospital accounts department will issue a Office (HPO) was established and bill for a full applicable charge. The onus numerous administrative boards have been then rests on the individual to show that he appointed, but the UHI is not yet in place356. or she is not liable for the fee. In order to Free GP care for children under 12 years old establish that a person is ordinarily resident, is set to start in October 2016. the HSE may require the documentary evidence such as proof of property purchase Accessing Ireland healthcare system or rental, evidence of funds, a residence permit or a work permit. Ordinarily residents All persons legally residing in Ireland are The medical card system entitled to receive healthcare through the Only medical card holders have full public healthcare system. eligibility to free healthcare in Ireland. The Health Act 1970360 introduced the Medical A wide range of public healthcare services Card system entitling free access to health are accessible free of charge or subsidized services within the public system. by the Irish government for those who fulfil the “ordinarily resident” condition. It

353http://health.gov.ie/blog/publications/future- 357http://www.hse.ie/eng/services/publications/corp health-a-strategic-framework-for-reform-of-the- orate/medcardgpvisit.pdf health-service-2012-2015/ 358http://www.irishstatutebook.ie/eli/1991/act/15/en 354http://health.gov.ie/future-health/structural- acted/en/html reform-2/money-follows-the-patient/ 359 Op. cit. note 349 355http://health.gov.ie/wp- 360http://www.irishstatutebook.ie/eli/1970/act/1/ena content/uploads/2014/04/UHI-Explained-.pdf cted/en/html 356http://health.gov.ie/future-health/structural- reform-2/

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Determination of the eligibility for a  Hospital Care: All in-patient services Medical Card is the responsibility of the in public wards in public hospitals, HSE. To determine such eligibility, the including public consultant services three primary means are applied: means test  Hospital visits: All out-patient discretionary assessment and EU services in public hospitals, including entitlements. public consultant services  Maternity Cash Grant on the birth of Both the means test and the discretionary each child assessment are based on the concept of  Medical & Midwifery Care for avoiding the “undue hardship” to an Mothers, including healthcare related individual if they had to pay their own to pregnancy and the care of the child medical costs. The primary way to assess for six weeks after birth the likelihood of the “undue hardship” is  Some personal and social care through a means test of income. The income services, for example, public health guidelines are used to establish eligibility nursing, social work services and and are intended to ensure that individuals other community care services based below certain levels of income have access on client need to healthcare without any cost361. GP Visit Cards entitle the holders to access The criteria to determine whether someone primary care provided by the GPs free of has access are numerous and there is no charge. unique threshold below which a person is automatically declared in “undue hardship”. Anybody in Ireland with a medical But to give an example, the monthly income emergency is entitled to attend the limit for a single person living alone to Emergency Department. A patient visiting obtain the medical card is of €736362. the Emergency Department will either be treated and sent home or will be admitted to Individuals with Medical Cards also have a ward as an in-patient. A fee of €100 free of cost access to acute healthcare. Non- applies unless the patient is referred to this Medical Card holders are liable for statutory service by the GP363. in – patient charges and outpatient charges for public care in public hospitals. Drug payment scheme Medical Card holders are entitled to the The Drug Payment Scheme allows following services free of charge: individuals and families who do not hold medical cards to limit the amount they have  Doctor visits: A range of GP services to spend on prescribed drugs. Under the from a chosen doctor in your local Drug Payment Scheme, the patient will not area pay more than €144 in any calendar month  Prescription Medicines: The supply for approved prescribed drugs, medicines of prescribed approved medicines, and appliances. The “ordinarily resident” aids and appliances such as condition is applicable for the eligibility for wheelchairs and crutches this scheme364.  Certain dental, eye and ear health services

361http://www.hse.ie/eng/services/list/1/schemes/mc 363http://www.hse.ie/eng/services/publications/corp /forms/medicalcardguidelines2015.pdf orate/medcardgpvisit.pdf 362http://www.citizensinformation.ie/en/health/medi 364http://www.hse.ie/eng/services/list/1/schemes/dru cal_cards_and_gp_visit_cards/medical_card_means gspaymentscheme/ _test_under_70s.html

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Long-term illness scheme paying for public patients to be treated for The Long-Term Illness Scheme allows free in private hospitals in Ireland. As a people with certain long-term conditions to result of this fund, over 135,000 patients on obtain the medicines and medical and the waiting lists have been treated so far. surgical appliances they require for the The NTPF has reduced the waiting times for procedures to an average of between two treatment of their condition, free of charge. 368 This scheme is not subjected to a means test and five months . or any income requirement and is separate from the Medical Card Scheme and the GP Access to healthcare for migrants Visit Card Scheme. However, only In Ireland, the same conditions on access to “ordinarily residents” can qualify for this healthcare generally apply to migrants as to scheme365. non-migrants. However, the rules, especially residence-related rules, have a Waiting times different impact on migrants than on non- The structure of the Irish healthcare system, migrants. divided in public and private schemes generates sometimes long waiting times for According to the Health (Amendment) Act treatments. It is common to have separate 1991, entitlement to access the healthcare is waiting lists for public and private patients based on residency rather than on for most procedures against which it is citizenship or the ability to contribute possible to ensure. This results in disparities towards general taxation. Therefore, in waiting times that depend on means migrants who meet the requirement of rather than clinical need. It is the most “ordinary residence” condition are entitled visible aspect of inequity in the Irish to access state-subsidized healthcare healthcare system366. The new healthcare services, including the Medical Card bill aims to correct this inequality. System. Both regular and irregular migrants who do not meet this requirement may be The reduction of government spending on asked to pay the full charges for healthcare healthcare since the onset of the financial services369. crisis increased waiting times for treatments. However, according to the 2015 What is more, certain categories of non- OECD (organisation for Economic EEA migrants are required to purchase Cooperation and Development) report, private healthcare insurance in order to since the last five years, health expenditures register with the immigration authorities, increased in Ireland, which should improve these include: international students and the healthcare system367. family dependents of work permit holders. The National Treatment Purchase Fund There are some adaptive structures to (NTPF) was set up in 2002 for those waiting migrants in healthcare in Ireland. The for more than 3 months for an operation or National Intercultural Health Strategy 2007 370 procedure. The NTPF is an independent – 2012 provided a range of initiatives statutory agency with the aim of overseeing such as translated informational material in the faster access to elective hospital-based different languages on health services. It treatment, it involves the government also provided resources, training and

365http://www.hse.ie/eng/services/list/1/schemes/lti/ 368 Op. cit. note 347 366http://www.ucd.ie/geary/static/publications/worki 369 Op. cit. note 347 ngpapers/gearywp200735.pdf 370http://www.hse.ie/eng/services/publications/Soci 367http://www.oecd.org/health/health- alInclusion/National_Intercultural_Health_Strategy systems/Focus-Health-Spending-2015.pdf _2007_-_2012.pdf

 Page 74 IRELAND support initiatives for staff in the healthcare Residence Condition introduced in Section system to be able to assist migrants more 17 of the Social Welfare (Miscellaneous effectively. Provisions) Act 2004372. Such asylum seekers are unable to meet “means test” Asylum seekers and refugees criteria and this, in turn, results in medical 373 Asylum seekers and refugees have access to card refusal . This means that this healthcare on the same basis than Irish vulnerable group of people has no access to citizens. free of charge primary care and GP service. Asylum seekers are entitled to the same Individuals who obtain the refugee status range of health services as Medical Card are regarded as ordinarily residents and fall Holders. While their application to remain under the same rules for entitlement for in the state is being processed, they reside health services as Irish nationals. in the Direct Provision Centres and do not It is to be noted that, according to the Dublin have to fulfil the “ordinary residence” or III Regulation374, during the 3 first month of means- testing criteria to receive healthcare the asylum application, another country can services. Services available to asylum request the responsibility to consider the seekers under the Medical Card Scheme application. As only one country can include: examine an asylum application, if this  GP services occurs, the asylum seeker will lose his  Public Hospital in-patient and out- status and the rights attached to it in Ireland, patient services and will be transferred to the country  Prescriptions/medicines declared competent to examine his  Women’s health services application.  Counselling services for people Pregnant asylum seekers and refugees traumatized by torture, rape and other critical life experiences Maternity services are available free of  Optical tests and glasses charge for pregnant asylum seekers and  Hearing tests and aids refugees under the maternity and Infant  Dental treatment for adults371 Care Scheme. It entitles women to free GP consultations, in-patient, out-patient and accident and emergency services in public However, if the asylum seekers chose to hospitals in respect of the pregnancy and the live outside the Direct Provision Centres for birth, and visits from a public health a variety of reasons, they will face nurse375. difficulties in accessing Medical Card System. Such asylum seekers have Children of asylum seekers and refugees difficulties in providing sufficient evidence Children in Ireland have the same of their means as they are effectively entitlement to health as their parents. Some excluded from receiving any social supports services are however provided free of from the State by virtue of Habitual charge for children independently of their

371http://www.citizensinformation.ie/en/moving_co sylum_seekers_in_ireland/direct_provision.html#l1 untry/asylum_seekers_and_refugees/services_for_a f4da sylum_seekers_in_ireland/medical_services_and_e 374Op. cit. note 372 ntitlements_for_asylum_seekers.html 375http://www.citizensinformation.ie/en/health/wom 372http://www.irishstatutebook.ie/eli/2004/act/9/ena en_s_health/maternity_and_infant_welfare_services cted/en/html .html 373http://www.citizensinformation.ie/en/moving_co untry/asylum_seekers_and_refugees/services_for_a

 Page 75 IRELAND parents, generally as part of maternity and to all expectant mothers who are ordinarily infant care welfare services and school resident in Ireland. This service is provided health services. The principal legislation by GPs and a hospital obstetrician. Women providing for children’s health services is are entitled to this service even if they do the health Act 1970, but no legislation not hold a medical card. Generally, all GPs specifies precisely what services are to be have agreements with the Health Service provided. In practice, children have access Executive to provide these services; they do to immunisation services, developmental not have to be part of the GPs and Medical paediatric examinations, school health Cards System. The Scheme also provides examinations and visits by public health for two post-natal visits to the general nurses. All Children under six are also practitioner. entitled to the GP visit card376. If the woman has a significant illness, e.g. Undocumented migrants diabetes or hypertension, she may have up to 5 additional visits to the GP free of The Irish law excludes undocumented charge. Care for other illnesses which the migrants, including children, from the woman may have at this time, but which are entitlement to access all but urgent free not related to pregnancy, is not covered by medical treatment: the full economic cost the Scheme. can be applied for any services provided. However, the cost of hospital charges can Mothers are entitled to free in-patient and be reduced or even waived if financial out-patient public hospital services in hardship is incurred. respect of the pregnancy and the birth and are not liable for any of the standard in- Access to healthcare over and above the patient hospital charges. urgent medical treatment (primary or secondary care) requires undocumented Children of undocumented migrants migrants to have financial means to access private healthcare, usually GPs in private All children under 6 years of age who live practice. in Ireland or intend to live in Ireland for at least one year are entitled to GP services Undocumented migrants have no access to free of charge under the GP Visit Card for Medical Card System as they are unable to children under 6s scheme379. There are meet the lawful residence requirement. This current plans to extend this scheme for all excludes this vulnerable group of people children under 12 years of age under the from accessing free healthcare system in Budget 2016, currently under negotiation Ireland377. with the Irish Medical Organisation380. 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 Scheme378. 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

376http://www.citizensinformation.ie/en/health/child 378http://www.hse.ie/eng/services/list/3/maternity/c ren_s_health/child_health_services.html ombinedcare.html 377http://www.citizensinformation.ie/en/health/entitl 379 Op. cit. note 372 ement_to_health_services/health_services_and_visi 380http://www.citizensinformation.ie/en/money_and tors_to_ireland.html _tax/budget_2016.html

 Page 76 IRELAND mother, guarantees in its laws to respect, Life during Pregnancy Act385, which and, as far as practicable, by its laws to currently regulates abortion, was enacted in defend and vindicate that right”381. 2013. Information on abortion services outside the The Protection of Life During Pregnancy state is also constitutionally protected, and Act 2013 provides for a limited right to the is regulated by the Regulation of termination of pregnancy if the woman’s Information (Services outside the State for life is at risk, including from suicide and Termination of Pregnancies) Act, 1995382. where the procedures carried out in the Act However, the Act also prohibits the are complied with. Yet, this Act limits legal promotion or advocacy of abortion while abortion to this unique situation, as abortion providing information. remains illegal even in cases of rape, incest, foetal anomaly or risk to a woman’s health. In 1992, a landmark Supreme Court case had a profound influence on abortion Furthermore, this restrictive abortion law legislation in Ireland and brought the Irish has a discriminatory impact on women who abortion debate to international attention. In do not have the financial means to travel to the 1992 “X case”383, a 14-year-old rape another country to get an abortion which victim was prevented by a High Court was criticized among others by the UN injunction from travelling to the UK to Human Rights Committee. Serious obtain an abortion. The girl’s family breaches of medical confidentiality are also claimed that she was at risk of suicide if she reported as each termination of pregnancy was not allowed to obtain an abortion. This is notified to the Minister of health386. decision was appealed to the Supreme Court, which overturned the High Court Article 22 of the 2013 Act also defines the order, stating that if there was a real and offence of intentional destruction of substantial risk to the life of the mother that "unborn human life", with a maximum could only be averted by termination of the sentence of 14 years of imprisonment. pregnancy, this would be lawful. The Supreme Court thus accepted risk of suicide EU citizens as a real and substantial risk to life, EU citizens ordinarily residing in Ireland effectively making abortion legal in Ireland have the same access to healthcare as the under these restricted circumstances. nationals. None of the provisions in the Health Act 2004387 affect the operation of However, it took two decades for the Irish the EC regulations, which govern health State to enact the legislation on foot of service entitlements for EEA nationals. Supreme Court ruling in the “X case”. After the 2010 condemnation of Ireland by the A range of services are available to EU European Court of Human Rights in the A, citizens on a temporary stay in Ireland and B and C v. Ireland384 case for of its failure holders of the European Health Insurance to implement the existing constitutional Card (EHIC) under the EU Regulation right to a lawful abortion, the protection of 1408/71388. EU residents may qualify for a

381https://www.constitution.ie/Documents/Bhunreac 385Protection of life during pregnancy Act – 2013 ht_na_hEireann_web.pdf http://www.irishstatutebook.ie/eli/2013/act/35/enact 382http://www.irishstatutebook.ie/eli/1995/act/5/ena ed/en/html cted/en/html 386https://www.ifpa.ie/Hot- 383http://www.supremecourt.ie/supremecourt/sclibra Topics/Abortion/Abortion-in-Ireland-Timeline ry3.nsf/(WebFiles)/B95A1F8B726975F18025765E 387http://www.irishstatutebook.ie/eli/2004/act/42/en 003C2C6E/$FILE/AG%20v%20X_1992.rtf acted/en/html 384 http://hudoc.echr.coe.int/eng?i=001-102332 388 Op. cit. note 373

 Page 77 IRELAND medical card if they fulfil the “ordinarily Unaccompanied minors resident” condition, get a social security The care of the unaccompanied minors falls pension from another EU/EEA country or under Child Protection which is the Switzerland or work and pay social responsibility of the HSE. The Child Care insurance in one of these countries and are Act 1991393 is concerned with the welfare of not subject to Irish social security the children who are not receiving adequate legislation. care and protection; and contains several EU citizens, who are on a temporary stay in provisions relating to the unaccompanied Ireland and who are not covered by the minors. Children taken into the care can EHIC, will not be able to meet “ordinarily access and benefit from accommodation, resident” condition and will be subjected to education, counselling and access to full charges for healthcare389. healthcare until they reach the age of majority. Regulation 10 of the Statutory Instrument No 656 of 2006 European Communities Child and Family Agency was set up under (Free Movement of Persons) (No 2) the auspices of the Child and Family Act Regulations 2006 provide that a non-EEA 2013394 responsible for providing a wide national family member of EU citizen may range of services to improve the wellbeing in general receive the same medical care and outcomes for all children, including and services as those to which the nationals unaccompanied minors. or ordinarily residents are entitled to390. All unaccompanied children under 18 are Pursuant to the 2004 European Directive entitled to access medical care and health 2004/38/EC391, after three month of screening free of charge, the same way as residence in Ireland, if an EU citizen has asylum seekers. insufficient funds and no health coverage, he/she will be considered as an Protection of seriously ill foreign undocumented migrant and will then be nationals entitled to the same rights as undocumented A non-EEA national can make an third country nationals. application for humanitarian leave to Reciprocal health agreement remain under Section 3 of the Immigration Act 1999395 after they have been issued with Ireland has a reciprocal health agreement a Notification of Intention to Deport with Australia, which entitles Australian pursuant to Section 3 of the Immigration nationals to receive emergency public Act 1999. hospital treatment subject to the standard charges for non-medical card holders in As a legal status, leave to remain is Ireland, and to receive assistance towards normally granted where asylum seekers do the cost of prescribed drugs and medicines not fit the strict definition of a refugee under on the same basis as people normally the 1951 Convention relating to the Status resident in Ireland392. of Refugees and where subsequent application for subsidiary protection is

389http://www.citizensinformation.ie/en/health/entitl 392http://www.irishstatutebook.ie/eli/2013/act/40/en ement_to_health_services/entitlement_to_public_he acted/en/html alth_services.html 393http://www.irishstatutebook.ie/eli/1991/act/17/en 390http://www.inis.gov.ie/en/INIS/SI656of2006.pdf/ acted/en/html Files/SI656of2006.pdf 394 Op. cit. note 392 391Op. cit. note 189 395http://www.irishstatutebook.ie/eli/1999/act/22/en acted/en/html

 Page 78 IRELAND refused but humanitarian reasons exist for performed in the country of permanent not returning the person to their country of residence. The appointment with a private origin. This is provided for under section 17 hospital in Ireland has to be set up prior to of the Refugee Act 1996396. However, leave the visa application and the patient has to to remain can be granted in broader demonstrate that he has sufficient resources circumstances than this, as it is a to cover the treatment. The visa is issued discretionary status. only for the purpose of a medical treatment and does not provide any entitlement to Section 3(6) of the 1999 Act sets out the residency or work rights in Ireland398. matters to which the Minister must have regard to when determining to make a Prevention and treatment of deportation order. Under this section, the Minister is required to consider a number of infectious diseases humanitarian grounds when determining 399 the application, including the applicant’s The Health Act 1947 entitles the Minister connections to the State, his family for Health to declare by regulations diseases situation, his employment prospects and that are infectious, covered by legislation, conduct. If the individual or a dependent has and that require notification to a Medical fallen seriously ill and there is no alternative Officer of Health. The infectious diseases treatment in their countries of origin, or if notifiable in Ireland are regulated in the he/she has undergone some other calamity, 1981 Infectious Diseases Regulations as a number of the section 3(6) headings would amended most recently by the Infectious Diseases (Amendment) Regulations 2011 apply when the Minister is considering the 400 matter. (S.I. No. 452 of 2011) , which identifies a list of notifiable communicable diseases, Serious health conditions are thus taken into including HIV since 2011. consideration in the decision to grant a permission to stay but there is no guarantee The Health Protection Surveillance Centre of receiving a positive outcome. (HPSC) is the specialist agency mandated for the surveillance of communicable If, having considered these humanitarian diseases in Ireland. factors, the Minister decides not to make a deportation order, it follows that the person HPSC Scientific Advisory Committee will be granted leave to remain in the publishes national guidelines on 397 communicable disease screening in Ireland. State . When humanitarian leave to 401 remain is granted, the person has the same The 2015 guidelines provide a access to 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 required medical procedure cannot be

396http://www.irishstatutebook.ie/eli/1996/act/17/en 399http://www.irishstatutebook.ie/eli/1947/act/28/en acted/en/html acted/en/html 397http://www.citizensinformation.ie/en/moving_co 400http://www.irishstatutebook.ie/eli/2011/si/452/m untry/asylum_seekers_and_refugees/refugee_status ade/en/print _and_leave_to_remain/leave_to_remain.html 401Health Protection Surveillance Centre (July 398http://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

 Page 79 IRELAND following infectious disease are included in Irish travellers: a national specific the recommended assessment programme: situation  Chickenpox Irish Travellers are an ethnic minority group  Hepatitis B that has been part of Irish society for  Hepatitis C centuries. They have a value system,  HIV language, customs and traditions, which  Intestinal Parasites make them an identifiable group both to  Malaria themselves and to others. Their distinctive  Measles lifestyle and culture, based on a nomadic  Polio tradition, sets them apart from the general  Rubella population.  Sexually Transmitted Diseases  Tuberculosis The Traveller community in Ireland suffers from markedly worse health problems Asylum seekers, refugees and their families related to social exclusion as compared with are entitled, free of charge, to medical the general population. Poor living screening, vaccination and follow-up conditions, social exclusion and low levels medical treatment for these diseases, under of education are some of the many factors the medical card scheme402. that contribute to substandard health in the Traveller community. Traveller women live People receiving treatment for infectious on average 12 years less than women in the diseases are also exempted of the €100 fee general population and traveller men live on if they use accident and emergency services average 10 years less than men in the or receive out-patient care without being general population405. referred by a GP and of the charges for in patient and day services403. Recent data suggest that Irish Travellers have the same options in availing of In Ireland, HIV treatment is provided free healthcare services as the settled of charge for everyone, regardless of population.406 In addition, the use of GP and immigration status. emergency services is higher in the Hepatitis C treatment is free only for Traveller community than in the settled patients considered as seriously-ill and population. Irish Traveller women’s health people who contracted it through the screening rates are higher than the general administration of blood within Ireland404. population. This does not necessarily imply Others have to cover its full price, which equal access, since Travellers are not denied specific services, but this demonstrates that amounts to around €45,000. the challenges facing healthcare workers in providing equal care to Irish Travellers are more complex than just availability of services.

402 Op. cit. note 347 406 Royal College of Surgeons in Ireland, Student 403http://www.citizensinformation.ie/en/health/hosp Medical Journal 2011; 4(1), Cultural Competence: ital_services/hospital_charges.html An Overview of the Health Needs of the Irish 404http://www.hse.ie/eng/services/list/1/schemes/he Traveller Community. pc/ http://www.rcsismj.com/wp- 405http://www.hse.ie/eng/services/yourhealthservice content/uploads/RCSIsmj-Vol4-Srev-Irish- /SUI/Library/participation/inclusion.pdf Traveller.pdf

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Primary Health Care for Travellers Projects (PHCTPs) established a model for Traveller participation in the development of health services. Travellers work as Community Health Workers, allowing primary healthcare to be developed based on the Traveller community’s own values and perceptions to achieve positive outcomes with long-term effects407. The strategic direction of Traveller healthcare is outlined in the National Traveller Health Strategy and the National Intercultural Health Strategy.

407http://www.hse.ie/eng/services/yourhealthservice /SUI/Library/participation/inclusion.pdf

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from all active workers and retired LUXEMBOURG individuals. They all pay a 1.4% contribution of all their professional and National Health System real estate incomes. These contributions are also complemented by State and electricity 412 Constitutional basis sector funding . Article 11 § 5 of the 1868 Constitution Accessing Luxembourg healthcare provides for the right to healthcare as system follows: “The law regulates […] social security, the protection of health, the rights According to Article 1 of the Social Security Code, health insurance is of workers, [and] the struggle against 413 poverty and the social integration of compulsory in Luxembourg . 408 citizens affected by disability” . The system allows access for basic healthcare free at the point of entry to all Organisation and funding of the citizens414. Nonetheless, one of the key healthcare system issues in Luxembourg is that access to The financing of Luxembourg’s healthcare healthcare and social protection is directly system is based on social participation by linked to the patient’s registered address. employees and employers and also on public funds contributed by the State. The State benefits for destitute people are paid contributions from employees and for healthcare contributions, as though the employers amount to approximately half of benefit authority were paying the the budget. The State contribution is funded contributions in the way an employer through general tax income409. would. The rate amounts to 5.2% divided equally between the benefit authority and The necessary financial resources to fund the beneficiary415. 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 State410. by contributing family members, pursuant to Article 7 of the Social Security Code416. Contributions are shared equally between Students and unemployed children are employees and employers, who each covered up until 27 years of age417. contribute 2.8% of the employee’s gross income (with a maximum contribution of The national healthcare system covers the €9,614.82 per month) on average to the majority of treatment provided by general National Health Fund (Caisse Nationale de practitioners and specialists as well as Santé – CNS) 411. laboratory tests, pregnancy, childbirth, Long-term care is financed through separate insurance called “assurance dépendance”. This is funded through by contributions

408 Constitution of Luxembourg of 1868 413Social Security Code, http://www.legilux.public.lu/leg/textescoordonnes/r http://www.legilux.public.lu/leg/textescoordonnes/c ecueils/Constitution/constitution_gdl.pdf odes/code_securite_sociale/code_securite_sociale.p 409http://www.cleiss.fr/docs/regimes/regime_luxem df bourg-salaries.html#generalites 414http://www.europe- 410 Ibid. cities.com/en/633/luxembourg/health/ 411Op. cit. note 414 415 Ibid. 412http://www.mss.public.lu/dependance/ad_finance 416 Op. cit. note 413 ment/index.html 417 Op. cit. note 414

 Page 82 LUXEMBOURG rehabilitation, prescriptions and less than 15 days beforehand and the hospitalisation418. amount must be less than €100423. All medical fees in the country are set by the Since 1 January 2013, and in accordance illness insurance fund. Fees are revised on with Article 24.2 of the Social Security an annual basis. By law, all healthcare Code, if authorised residents in providers must observe these fees and there Luxembourg are not able to pay their are strict penalties for abuse of the healthcare costs in advance, they can apply system419. to the relevant Social Welfare Office for Third-party Social Payment (tiers payant The patient must pay all costs and then social – TPS)424. submit receipts to the National Health Fund for reimbursement. The amount received as According to the law, TPS can be granted to a reimbursement varies from 80% to 100%. any resident in Luxembourg. The Social Thus, the first consultation is reimbursed at Welfare Office is the only body competent 80% and further consultations which occur to assess whether or not an individual within 28 days are reimbursed at 95%420. should benefit from it425. Usually the reimbursement for prescription When a person is granted TPS, s/he is given medicine is 78%, although there are four a certificate and a book of special labels426. categories of reimbursement for From this point on, they will not have to pay prescription medicine and levels range from in advance for any care. When they access 0% to 100%421. healthcare they are asked to give the practitioner a label and the CNS will pay Prescription drugs can only be prescribed directly for each episode of care. Indeed, the by doctors and consultants and the costs are practitioner after receiving the patient will reimbursed by the Caisse Nationale de send the prescription to the CNS together Santé. Non-prescription drugs are priced with the label, in order to obtain payment427. much higher and are generally not reimbursed. The aim of TPS is to facilitate access to healthcare for people with limited The annual participation of insured income428. It can be granted for three individuals to their healthcare costs cannot months, six months and, exceptionally, one exceed 2.5% of their contributory income of year. At the end of the three months, the the preceding year. If this occurs, all cost beneficiary can ask the Social Welfare above this threshold will be reimbursed by Office for an extension429. the competent illness insurance fund422. Access to healthcare and social protection If a patient has paid healthcare fees in in Luxembourg are directly linked to the advance and is not willing to wait for a bank patient’s address. In other words, if an transfer to be reimbursed, they can also be individual does not have a proper registered reimbursed via a bank cheque. There are address they will not be able to access social two conditions for reimbursement by protection. This is why Doctors of the cheque: the payment must have been made World – Médecins du monde (MdM)

418http://www.mss.public.lu/publications/rapport_g 423 http://www.cns.lu/ eneral/rg2015/rg_2015.pdf 424http://www.cns.lu/assures/?m=97-0-0&p=281 419Op. cit. note 414 425 Ibid. 420Op. cit. note 414 426 Op. cit. note 419 421http://www.cns.lu/assures/?m=5- 427 Op. cit. note 419 0&p=6&language=en 428 Op. cit. note 423 422 Op. cit. note 409 429 Op. cit. note 419

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Luxembourg currently mostly treats for International Protection and Temporary homeless people. Protection434, both adopted on 18 December 2015. Although 99% of the population is covered by the state healthcare system, private Asylum seekers healthcare is also accessible. About 75% of The law on the Reception of Applicants for the population purchases additional health International Protection and Temporary insurance coverage, which is mostly used to Protection of 18 December 2015435 pay for services classified as non-essential regulates the rights of asylum seekers. under the compulsory scheme. Private health insurance is provided by non-profit Pursuant to article 8-1 of this law, asylum agencies or mutual associations (mutuelles), seekers are entitled to a standard of living which are also allied to the Ministry of that “ensures their subsistence and protects Social Security430. their physical and mental health”. Medical care is provided by the Luxembourg There are no private hospitals in Reception and Integration Agency Luxembourg, as all hospitals are state-run (OLAI)436. by the CNS and patients must have a referral from their doctor for an admission However, according to article 8-3, to benefit to hospital, unless it is an emergency431. In from the material reception conditions and practice, people go to hospitals even if they medical care, the applicant must be without do not have a referral from a doctor. sufficient financial resources and stay at a place determined by the competent In theory, all emergency care is provided at authority. hospitals and is free at the point of use432. It is important to stress that, in practice, when Asylum seekers are entitled, to free housing patients with no insurance arrive at and food distribution, as well as a monthly hospitals in order to get emergency care allocation. If food is provided, the monthly they are asked for a financial guarantee allocation amounts to €25.63 for adults and before they are treated. unaccompanied minors and of €12.81 for minor children, in accordance with article Luxembourg also has specialist hospitals 13-1 of the law on the Reception of and specialist doctors available for Applicants for International Protection and consultation but an appointment is Temporary Protection. necessary. In cases where it is not possible to provide Access to healthcare for migrants access to food, the monthly allocation is €225.63 for adults and for unaccompanied Asylum seekers and refugees minors, and of €187.81 for minors pursuant to article 13-2 of the same law. The main regulations on International protection in Luxembourg are the Law on International and Temporary Protection433 and the Law on the Reception of Applicants

430https://healthmanagement.org/c/it/issuearticle/ov 434 Law on the Reception of Applicants for erview-of-the-healthcare-system-in-luxembourg International Protection and Temporary Protection 431 Ibid. – 2015 432 Op. cit. note 426 http://eli.legilux.public.lu/eli/etat/leg/loi/2015/12/18 433Law on International and Temporary Protection /n16 of 18 December 2015 435Op. cit. note 433 http://www.legilux.public.lu/leg/a/archives/2015/02 436 http://www.olai.public.lu/en/index.html 55/a255.pdf#page=2

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The monthly allowance is supplemented by disabled individuals; victims of torture, of benefits in kind or vouchers that cover costs rape or of any severe form of mental as accommodation and medical costs437. violence; minors victim of any form of abuse, negligence, inhumane or degrading Asylum seekers who are victims of rape or treatment; and minors victim of armed other serious violence are entitled to conflicts. adequate medical and psychological care438. Undocumented migrants The complete removal of material reception Undocumented migrants include visa or conditions of asylum seekers by the permit “overstayers”, rejected asylum authorities is prohibited. Access to basic seekers and individuals who have entered health care and a dignified and adequate the country without a permit. In standard of living of the applicant, are Luxembourg, undocumented migrants have guaranteed in all circumstances by article no access to healthcare440. 24 of the Law on the Reception of Applicants for International Protection and Moreover, children of undocumented Temporary Protection. migrants have access to inclusive healthcare Refugees only if they are unaccompanied, whereas children of undocumented migrants living The Law on International and Temporary with their families often face considerable 439 Protection repealed the Law on asylum difficulties in accessing basic preventive and other complementary forms of and follow-up care441. protection of 5 May 2006, which was the former central legislation concerning With regard to this issue, the European international protection. Committee of Social Rights, (Council of Europe), issued conclusions in 2013 on the Pursuant to article 62-1 of the Law on conformity of Luxembourg’s health system International and Temporary Protection, regarding the European Social Charter442. beneficiaries of a form of international These conclusions are quite revealing protection have the same access to concerning undocumented migrants’ access healthcare as Luxembourg nationals. to emergency care. Article 62-2 of this law further provides that The report concludes that Luxembourg’s beneficiaries of a form of international legislation and practice do not guarantee protection with special needs are also that all foreign nationals in an irregular entitled to free mental healthcare. This situation can benefit from emergency care category comprises: pregnant women; for as long as they may need to. The

437Law on the Reception of Applicants for Accessing health Care: fostering health inequalities International Protection and Temporary Protection in Europe, March 2011, op. cit. note 433 Article 13-3 http://picum.org/picum.org/uploads/publication/Pub 438Law on the Reception of Applicants for lic%20hearing%20on%20access%20to%20health% International Protection and Temporary Protection 20care%20for%20undocumented%20pregant%20w op. cit. note 433 Article 17 omen%20and%20children%20- 439 Op. cit. note 433 %208%20December%202010_1.pdf 440 Bernd Rechel et al., “Migration and health 442European Social Charter, European Committee of in the European Union”, European Observatory on social rights, Conclusions, Conclusions XX-2 Health Systems and Policies, 2011, (2013), (LUXEMBOURG) http://www.euro.who.int/__data/assets/pdf_file/001 Articles 3, 11, 12, 13 et 14 of the 1961 Charter, 9/161560/e96458.pdf March 2014, 441Platform for International Cooperation on http://www.coe.int/t/dghl/monitoring/socialcharter/ Undocumented Migrants (PICUM), Preventing Conclusions/State/LuxembourgXX2_fr.pdf undocumented pregnant Women and Children from

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Committee notes that there is no specific The cost of a pregnancy termination is legislation concerning undocumented reimbursed by the social security service446. migrants’ access to health. Moreover, their access to emergency care has been limited Protection of seriously ill foreign 443 to two or three days . nationals Termination of pregnancy In Luxembourg, the Immigration Medical Department makes sure that the The most recent law regulating termination organisation of the medical part of the of pregnancy was adopted on 17 December legislation on the free circulation of people 2014444, modifying the 1978 law which and immigration447 is properly authorized abortion in Luxembourg. implemented. Termination of pregnancy is legal in This service has four principal missions: to Luxembourg up to 12 weeks from the date organise the medical check-ups of third- of conception445, provided that: country nationals, to assess whether or not  The woman has obtained a certificate foreign nationals may have their expulsion of pregnancy, information and from Luxembourg deferred for medical documentation after consulting a reasons, to assess whether or not foreign specialist in gynaecology and nationals may stay in Luxembourg in order obstetrics at least three days to receive medical treatment which is not beforehand covered by social security and to give  A licensed specialist in gynaecology advice on limitations to the right for EU and obstetrics carries out the citizens and their family members to 448 termination of pregnancy and circulate and live freely in Luxembourg . provides information on the available According to the Law of 26 June 2014, psychosocial support and counselling modified by the law of 18 December 449 The consent of the parents, guardians or a 2015 , the Immigration Medical judge is required for minors under 18. Department must issue medical advice when requested by the Ministry of Under exceptional circumstances (life- Immigration in order for the expulsion of an threatening risk to the mother or the unborn individual from the country to be child), a pregnancy termination may take deferred450. place after 12 weeks. In these cases two physicians must state in writing that there is a serious risk to the woman’s health. A doctor has the right to refuse to perform a pregnancy termination.

443 Ibid. 448http://www.guichet.public.lu/citoyens/fr/organis 444 Law on termination of pregnancy – 2014 mes/ministere-sante/service-medical- http://www.legilux.public.lu/leg/a/arc »hives/2014/ immigration/index.html 0238/a238.pdf 449Law of 26 June 2014, 445 Law on termination of pregnancy, article 12 http://eli.legilux.public.lu/eli/etat/leg/loi/2008/08/29 446 Law on termination of pregnancy, Article 14 /n1 447 Law on free circulation of 2008, modified by the 450http://www.sante.public.lu/fr/prevention/milieux/ Law on international protection of 18 December travail/service-sante-migrant/sursis- 2015 eloignement/index.html http://eli.legilux.public.lu/eli/etat/leg/loi/2008/08/29 /n1/jo

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A foreign national may benefit from such a  An agreement from the health deferment if: establishment for the admission of the patient on a certain date, signed by the  their health conditions require head of the service which will treat treatment which cannot be refused to the patient458. them without serious consequences  An estimate of the cost of the for their health treatment and proof that the financing  And the person concerned is not able of it are guaranteed by the person459. to get the treatment in the country they are about to be sent back to451. As it is nearly impossible to obtain a certificate proving that a treatment is If all the requirements are met, the inaccessible and since the patient has to individual will obtain a deferment of cover the cost of his treatment, this 452 expulsion for a maximum of six months , procedure is extremely restrictive. with the possibility of renewal not 453 exceeding two years . Prevention and treatment of If after two years the individual’s health infectious diseases state has not improved and still needs the In Luxembourg, the Ministry of Health has treatment, then they can apply for a adopted a national strategy and an action 454 residency permit for medical reasons . plan to fight against HIV/AIDS (2011- 460 The deferment can be extended to members 2015) . of the individual’s family. People who In this plan, it is stated that migrants face benefit from such a deferment receive a multiple vulnerabilities such as increased certificate of deferment which grants them risk to infectious diseases461. The 455 healthcare and access to social aid . For a government has assessed the need to raise foreign national who wants to have access awareness regarding these diseases and the to a specific medical treatment in necessity for these migrants to access free Luxembourg, different documents have to HIV screening tests462. No specific mention be presented to authorities: is made for undocumented migrants.  Medical certificates proving the There are national health facilities which necessity of such a treatment, with provide such services for free and specific mention of the type of anonymously. There are six of them 456 treatment and its length . throughout Luxembourg463.  A certificate from the medical authorities from their country of The Ministry of Health or the National origin proving that the person cannot Health Fund in Luxembourg should cover receive the treatment in their payment of treatment for people who are country457. not insured or are unable to afford it464.

451 Ibid. 460 Ministry of Health of the Grand Duchy of 452 Op. cit. note 449, Article 131. Luxembourg, National strategy and action plan 453 Op. cit. note 449, Article 131. regarding the fight against HIV/AIDS 2011-2015 454 Op. cit. note 449, Article 131. http://www.sante.public.lu/fr/publications/s/strategi 455 Op. cit. note 449, Article 132. e-plan-action-vihsida-2011-2015/index.html 456 Op. cit. note 449, Article 130. 461 Ibid. 457 Op. cit. note 449, Article 130. 462 Op. cit. note 460 458http://www.sante.public.lu/fr/prevention/milieux/ 463http://www.dimps.lu/files/mds-sida-annoncea4- travail/service-sante-migrant/soins-etrangers- hd-.pdf luxembourg/index.html 464 Op. cit. note 460 459 Ibid.

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Nonetheless, the Ministry of Health has recognised that a number of administrative barriers often impede vulnerable groups in accessing treatment when they need it465. Moreover, in relation to the treatment of infectious diseases in Luxembourg, on 27 February 2015 the government adopted a regulation creating a special Monitoring Committee for HIV, hepatitis and other sexually transmissible infections466. This Committee is mandated to inform the public, targeted groups and professionals about all issues regarding these infections, to collaborate with national and international organisations to develop programmes in order to fight against HIV, to provide advice on all questions relating to this issue, and to propose measures to improve the prevention of and fight against infectious diseases467.

465 Op. cit. note 460 467 Regulation of 27 February 2015, Art.1 466Regulation of 27 February 2015, http://eli.legilux.public.lu/eli/etat/leg/rgc/2015/02/2 7/n1

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limited to controlling quality, accessibility NETHERLANDS and affordability of healthcare469.

National Health System Accessing the Netherlands healthcare system Constitutional basis Taking out standard (private) health insurance is obligatory for authorised According to the Dutch Constitution, the 470 government has a duty to ensure social residents . 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)468. Articles 1 (equal deny coverage to individuals deemed to be “high-risk” on account of their age, gender treatment), 10 (the right to respect and 471 protection of personal privacy) and 11 (the or health profile . 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)472.

Organisation and funding of Dutch Contraception is not included in the basic healthcare system package. Pregnancy termination is not included either, but is fully reimbursed Since 2006, a dual system of public and 473 private insurance for curative care has been under the Law on Long-term Healthcare . replaced by a single compulsory health insurance scheme. Competing insurers To cover costs not included in the standard (allowed to make a profit) negotiate with package, for example physiotherapy or providers on price and quality, and patients dental care, people may opt to take out are free to choose the provider they prefer additional insurance. The premium for this and join the health insurance policy which extra package is freely established by best fits their situation. According to the private insurers. European Observatory on Health Systems Once they have paid the franchise (see and Policies, primary care is well- below), insurance holders do not have to developed, with GPs acting as gatekeepers pay any costs for services included in the to the system in order to prevent standard package – there is no out-of- unnecessary use of more expensive pocket expenditure. The monthly premiums secondary care. The government’s role is for health insurance currently (June 2016)

468http://wetten.overheid.nl/BWBR0001840/geldigh 471Civitas, Health care Systems: The Netherlands, eidsdatum_21-05-2015 By Claire Daley and James Gubb 469 W. Schäfer et al., “Germany: Health system updated by Emily Clarke (December 2011) and review”, Health Systems in Transition, vol. 12, No Elliot Bidgood (January 2013), 1, 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 472http://www.rijksoverheid.nl/onderwerpen/zorgve 470 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- 473http://www.rijksoverheid.nl/onderwerpen/zorg- 2015 in-zorginstelling/wet-langdurige-zorg-wlz

 Page 89 NETHERLANDS range from €82 to €112 per month. Prices franchise (their “own risk”), which is vary between providers, but also depending currently (July 2016) – as defined by law – on age, sex, residence and which formula at least €385 a year479, but can go up to €875 the individual chooses: access to a limited depending on their chosen insurance number of contracted care providers (versus formula480. An increasing number of a larger or even unlimited choice), opting in patients facing poverty have difficulty or out of (partial) reimbursement of dental paying this franchise. In order to pay lower care, glasses and the degree of “own risk” monthly premiums, they often opt for a (see below). In addition, an income- higher franchise – a tempting offer as long dependent employer contribution is as one doesn’t fall seriously ill. The deducted through the employee’s payroll franchise does not apply to care for minors and transferred to a Health Insurance Fund. (nor does it apply to their dental care), GP visits, antenatal care, or for integrated care Authorised residents on a low income are schemes for chronic diseases (e.g. eligible for healthcare benefits. A single diabetes)481. Vaccinations are freely person can receive monthly help up to €83, accessible for all children through 474 couples up to €158 a month . Single preventive frontline infant consultations (0- people with yearly incomes lower than 4 years), and according to the national €27,012 have a right to financial help; for immunisation calendar482. couples the income ceiling is €33,764. Only people with limited capital have a right to Authorised residents who do not take out these benefits475. In 2015, benefits have obligatory insurance are proactively been raised for the lowest incomes, contacted by the National Healthcare although the average Dutch citizen will Institute (Zorginstituut Nederland), asking have to pay for a larger part of their them to take out insurance within three insurance themselves476. In July 2014, the months. Those who do not take out Ministry of Health denied the trend of insurance are fined €332.25 – up to two increased giving up seeking times – before the institution automatically healthcare477denounced by the national GP contracts health insurance for them and association478. deducts the insurance premiums automatically from the income of the newly When accessing healthcare services and insured individual483. Those who do not pay treatment, people first need to pay a

474http://www.belastingdienst.nl/wps/wcm/connect/ 479http://www.hspm.org/countries/netherlands25062 bldcontentnl/belastingdienst/prive/toeslagen/zorgto 012/countrypage.aspx eslag/zorgtoeslag_2016/voorwaarden_2016/inkome 480 The amount of the franchise has drastically been n/bedragen_per_maand raised over the past few years: from €150 in 2008, 475 The ceiling has been systematically lowered, €220 in 2012, €350 in 2013, €360 in 2014, to €375 thereby limiting the number of people with a right to in 2015. benefits. e.g. for a single person, the income ceiling http://www.rijksoverheid.nl/ministeries/vws/docum was €35.059 in 2012 and €30.939 in 2013, until enten-en- 2016, when it was raised publicaties/kamerstukken/2015/02/06/kamerbrief- http://www.rijksoverheid.nl/onderwerpen/zorgtoesl over-verbeteren-kwaliteit-en-betaalbaarheid- ag/vraag-en-antwoord/wanneer-heb-ik-recht-op- zorg.html zorgtoeslag.html. 481http://www.independer.nl/zorgverzekering/info/e 476http://www.zorgkeus.nl/zorgverzekering/zorgtoes igen-risico.aspx lag-10-euro-omhoog-voor-laagste-inkomens 482http://www.rivm.nl/Onderwerpen/R/Rijksvaccina 477http://www.rijksoverheid.nl/ministeries/vws/docu tieprogramma/De_inenting/Vaccinatieschema menten-en- 483http://www.rijksoverheid.nl/onderwerpen/zorgve publicaties/kamerstukken/2014/07/28/beantwoordin rzekering/vraag-en-antwoord/wat-gebeurt-er-als-ik- g-kamervragen-over-onderzoek-huisartsen.html niet-verzekerd-ben-voor-de-zorgverzekering.html 478https://www.lhv.nl/actueel/nieuws/zorgmijden- neemt-steeds-zorgwekkender-vormen-aan

 Page 90 NETHERLANDS their monthly premiums face financial Access to healthcare for migrants penalties. Asylum seekers, refugees and persons Termination of pregnancy eligible for subsidiary protection For residents authorised to reside, As authorised residents, recognised pregnancy termination is free at the point of refugees and people who have obtained delivery under the Act on Long-term subsidiary protection have the same duties Healthcare484. For women who are 12 to 16 and rights as Dutch citizens. Asylum days pregnant, there is no waiting period. seekers access healthcare through a parallel After 16 days and up to 13 weeks, there is a scheme of primary care contracting, “cooling off period” of five days between organised by Menzis, a non-profit insurance the first consultation and the termination (as company commissioned by the Central determined by the 1981 Termination of Agency for the Reception of Asylum Pregnancy Act485). The gestational limit Seekers (Centraal Orgaan opvang stated in the Law is 24 weeks (based on asielzoekers – COA). On the one hand, this foetal viability)486. means that they can only turn to GPs, physiotherapists, dentists, hospitals and In case a late termination is needed – after pharmacies that are contracted. On the other 24 weeks – doctors are obliged to report 487 hand, no out-of-pocket payment at all (not these to a central committee . Under the even a franchise) is required490. New Regulation on late-term abortions and Termination of Life in Neonates488, which As for Dutch residents, GPs are the entered into force on February 2016, late- gatekeepers of access to other healthcare term termination is authorised when an services. The basket of care is similar to that unborn baby has an untreatable disease of the basic package for authorised expected to lead inevitably to its death residents (but, for example, dental care for during or immediately after birth, or if an adults is also accessible in case of pain or unborn baby has a disease that has led to chewing problems491). Upon entry, asylum serious and irreparable impairment, where seekers undergo compulsory TB screening. only a small chance of survival exists. Asylum seekers coming from high-risk countries are offered voluntary follow-up A termination may only be performed by a screening for a period of two years492. physician in a licensed hospital or clinic and has to ensure that “an adequate opportunity Pregnant asylum seekers and refugees is made available for providing the woman Pregnant asylum seekers and refugees have with responsible information on methods of access to antenatal, delivery and postnatal preventing unwanted pregnancies”489. healthcare free at the point of delivery. Because of their specific vulnerabilities,

484http://www.rijksoverheid.nl/onderwerpen/zorg- 489 Termination of Pregnancy Act of 1 May 1981, in-zorginstelling/wet-langdurige-zorg-wlz Article 5(2a), 485http://wetten.overheid.nl/BWBR0003396/geldigh http://wetten.overheid.nl/BWBR0003396/geldighei eidsdatum_22-04-2015 dsdatum_21-05-2015 486New regulation on Late-term Abortions and 490http://www.rzasielzoekers.nl/home/zorg-voor- Terminations of Lives of Neonates - 2011 asielzoekers.html http://wetten.overheid.nl/BWBR0003396/2011-10- 491http://www.rzasielzoekers.nl/dynamic/media/28/ 10 documents/rzaenbijlagen/Bijlage_5_noodhulplijst_ 487http://www.rijksoverheid.nl/onderwerpen/levense 2015.pdf inde-en-euthanasie/late-zwangerschapsafbreking- 492http://www.rzasielzoekers.nl/dynamic/media/28/ en-levensbeeindiging-bij-pasgeborenen documents/overige_documenten/2012_factsheet_M 488 Op. cit. note 486 enzis_HR.pdf

 Page 91 NETHERLANDS those women are entitled to more intensive not be affected by uncertainty about the antenatal care (with more consultations). duration of the patient’s stay in the They are also entitled to access to Netherlands. Doctors and healthcare pregnancy termination services free of institutions should focus primarily on the charge. However, asylum seekers and medical and healthcare-related aspects and refugees aged 21 and over have to pay for not on the financial aspects and funding contraceptives themselves493. issues. Children of asylum seekers According to the Dutch authorities497, All children can access free vaccination at undocumented migrants are expected to pay preventive frontline infant consultations (0- for treatment themselves, unless it is proven 4 years), including children of asylum that they have difficulty in paying. In that seekers. For other care (including case, GPs can recover 80% of the cost of a vaccinations after the age of 4), they can consultation for an undocumented patient only access care under the same specific (the full cost being €27.19 for a short scheme for asylum seekers as their parents. consultation and €54.38 for a consultation that takes longer than 10 minutes) from the Undocumented migrants healthcare authorities. In the case of secondary care, medical costs are only Undocumented migrants cannot take out reimbursed for the 31 hospitals which health insurance. Indeed, the Linkage Act of entered into an agreement with the 1998494 linked the right to state medical healthcare authorities. insurance to authorized residency. They have a right to emergency care, and In practice, there are many barriers (e.g. “medically necessary care” (including all GPs who refuse patients because they antenatal and delivery care), as well as care refuse to use the reimbursement scheme or needed in “situations that would jeopardise because the patient cannot pay the public health”495. remaining 20% of the consultation fee, lack of knowledge of the reimbursement scheme In 2007, an independent commission of etc.). In 2014, the authorities drafted a short medical (and social and legal) experts, document to help healthcare professionals clearly defined “medically necessary determine who is undocumented498, care”496: doctors must provide adequate and although the language used is rather appropriate care by following the same stigmatising499. The barriers to healthcare guidelines, protocols and code of conduct for undocumented people were also that medical and academic professional confirmed by the National Ombudsman in organisations adhere to in care for any other 2013500. patient. Continuity of medical care should

493 S. Goosen, “Induced abortions and teenage births 497http://www.zorginstituutnederland.nl/verzekering among asylum seekers in the Netherlands: analysis /onverzekerbare+vreemdelingen of national surveillance data”, Journal of 498http://www.zorginstituutnederland.nl/binaries/co Epidemiology and Community Health, 2009 ntent/documents/zinl- http://www.ggdghorkennisnet.nl/?file=1204&m=13 www/documenten/rubrieken/verzekering/onverzeke 10635532&action=file.download rbare-vreemdelingen/1307-hoe-stel-ik-vast-dat- 494 The Linkage Act of 26 March 1998, iemand-illegaal-in-nederland- http://wetten.overheid.nl/BWBR0009511/geldighei verblijft/Hoe+stel+ik+vast+dat+iemand+illegaal+in dsdatum_02-06-2015 +Nederland+verblijft.pdf 495 Foreigners Act – 2000 499http://picum.org/picum.org/uploads/file_/Leaflet http://www.refworld.org/docid/3b5fd9491.html _NL_forPrinting_7Nov.2014.pdf 496http://www.pharos.nl/documents/doc/webshop/ar 500Medische zorg vreemdelingen. Over toegang en ts_en_vreemdeling-rapport.pdf continuïteit van medische zorg voor asielzoekers en uitgeprocedeerde asielzoekers

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Before 2014, contracted pharmacies could pharmacies up to 100% of the unpaid bills. recover between 80% and 100% of all the However, it sometimes happens that costs for undocumented migrants who were undocumented women are urged to pay unable to pay. However, since January straight away in cash, requested to sign up 2014, a €5 payment for every for payment by instalments or receive a bill pharmaceutical prescription has been and reminders at home, and sometimes are imposed. Several support organisations followed by debt collectors contracted by paid the €5 for those who needed a lot of healthcare providers. medication. As a result of their advocacy work, some municipalities agreed to start an Pregnant women can obtain a postponement emergency fund, to compensate the support of their departure from the Netherlands 503 organisations which had covered the costs. under Article 64 of the Foreigners Act For instance, in 2015, Amsterdam signed a (see below) due to being unfit to travel six covenant with pharmacies and support weeks before and six weeks after giving organisations (including Doctors of the birth. During this period, women have World) to manage this fund for patients who access to healthcare under the same scheme cannot pay. However, various hurdles as pregnant asylum seekers. remain in order for undocumented migrants Unlike maternity care, contraception and to benefit from such a fund. Consequently, pregnancy termination have to be fully paid MdM is confronted with many patients for for by undocumented women. whom even €5 is too much. Children of undocumented migrants The European Committee of Social Rights ruled in 2014 that the Dutch government All children can access free vaccination at should ensure the provision of the necessary preventive frontline infant consultations (0- food, water, shelter and clothing to adult 4 years), including children of migrants in an irregular situation and to undocumented parents. For curative care, asylum seekers whose applications for and for vaccinations after the age of 4, the protection have been rejected501. The Dutch children of undocumented migrants face the Association of Municipalities (Vereniging same barriers to care as their parents. If they Nederlandse Gemeenten) has taken the get Dutch nationality, they will be entitled same view concerning rejected asylum to free healthcare through the regular seekers502. insurance scheme. Undocumented pregnant women EU citizens They have access to antenatal, delivery and In accordance with Directive 2004/38/CE, postnatal care, but this access is not free at EU citizens are considered as the point of use. Undocumented migrants “undocumented” after three months of stay are expected to pay for treatment in the Netherlands without health coverage themselves, unless it is proved that they and sufficient resources. The care scheme cannot pay. In the case of pregnancy and for undocumented third-country nationals is delivery, authorities can decide to not applicable to EU citizens without reimburse contracted hospitals and authorisation to reside. If the latter do not

501European Committee Of Social Rights, willen-uitgeprocedeerde-asielzoekers-opvang- Conference of European Churches (CEC) v the kunnen-bieden Netherlands, 1 July 2014, 503Foreigners Act – 2000 http://www.coe.int/t/dghl/monitoring/socialcharter/ http://wetten.overheid.nl/BWBR0011823/Hoofdstu Complaints/CC90Merits_en.pdf k6/Afdeling2/Artikel64/geldigheidsdatum_27-04- 502https://www.vng.nl/onderwerpenindex/integratie- 2015 en-asiel/vreemdelingenzaken/nieuws/gemeenten-

 Page 93 NETHERLANDS have a European Health Insurance Card would lead to death, disability or another (EHIC), they only have free access to form of serious psychological or physical emergency care504. There are no specific damage within three months” (Article legal provisions for children of destitute EU B8/9.1.3 of the Foreigners Circular citizens. 2000510). As this suspension of expulsion is only applicable in emergencies, it is usually Unaccompanied minors granted for six months. However, the law Unaccompanied children seeking asylum states that a postponed departure can be have access to healthcare services on the granted for a maximum of one year. same basis as adult asylum seekers. They As explained above, pregnant women can receive extra assistance in separate be granted a postponed departure due to reception facilities505. If their application is being unfit to travel six weeks before and rejected, they keep their right to live in the six weeks after giving birth. In case of asylum reception centres, to benefit from pregnancy, the leave to remain is healthcare services and their right to automatically granted. No proof of identity education until departure, according to is needed to start the procedure: a Article 6 of the Measures regarding asylum declaration by a gynaecologist or seekers and other categories of foreign obstetrician and a filled out request form are nationals506. In order to determine minors’ sufficient. During this period, women have age, medical examination methods as X- access to healthcare under the same scheme rays of the wrist and collarbone are often as pregnant asylum seekers. used. MdM strongly criticises these practices, considered as imprecise, People who have been admitted unethical and unreliable507. involuntarily to a psychiatric hospital are automatically granted a postponed Protection of seriously ill foreign departure for the period of the nationals hospitalisation for a maximum of six months. After six months the situation is Postponed departure from the reassessed and if the person is still Netherlands due to medical emergencies hospitalised, the postponed departure will be extended for six months. According to Article 64 of the Foreigners 508 Act 2000 , in conjunction with Article 3.4 Residence permit for medical treatment of the Foreigners Decree 2000509, the expulsion of undocumented migrants can be According to Article 14 of the Foreigners 511 suspended as long as their (or a family Act 2000 in conjunction with Article 3.5 512 member’s) state of health would make it of the Foreigners Decree , a temporary “inadvisable” for them to travel. This means residence permit may be granted if medical that “termination of medical treatment treatment is needed in the Netherlands as

504http://www.pharos.nl/documents/doc/pharos_ver 509 Foreigners Decree – 2000 slag_expertmeeting_gezondheid_en_zorggebruik_ http://wetten.overheid.nl/BWBR0011825/Hoofdstu midden-en_oost-europese_migranten-8juni2012.pdf k3/Afdeling2/Paragraaf1/Subparagraaf5/Artikel346 505 http://www.coa.nl/nl/asielzoekers/wonen-op-een- /geldigheidsdatum_27-04-2015 azc/kind-in-de-opvang 510http://wetten.overheid.nl/BWBR0012289/B8/9/9 506 Measures regarding asylum seekers and other 1/913/Tekst/geldigheidsdatum_27-04-2015 categories of foreign nationals 511http://wetten.overheid.nl/BWBR0011823/Hoofds http://wetten.overheid.nl/BWBR0017959/geldighei tuk3/Afdeling3/Paragraaf1/Artikel14/geldigheidsda dsdatum_22-04-2015#HoofdstukIII_Artikel6 tum_23-04-2015 507http://www.vluchtelingenwerk.nl/feiten- 512http://wetten.overheid.nl/BWBR0011825/Hoofds cijfers/alleenstaande-minderjarigen tuk3/Afdeling2/Paragraaf1/Subparagraaf1/Artikel3 508 Foreigners Act Op. cit. note 483 4/geldigheidsdatum_23-04-2015

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NETHERLANDS the only country in which the special Although, in theory, seriously ill treatment can take place513. This permit is undocumented migrants have a legal right granted for a maximum period of one year, to await the decision on their request for a and in exceptional cases for five years. residence permit on medical grounds in a Migrants with this residence permit are not reception facility for asylum seekers516, this allowed to work. Patients must prove that is often not the case. they can cover their living and treatment 517 costs (e.g. via their own insurance) during In 2013, the National Ombudsman their residence. Furthermore, a precondition condemned the many barriers to accessing to obtaining this temporary residence the procedure and effective protection: the permit is to have obtained advance need for formal proof of identity and authorisation to enter the Netherlands514. medical declarations from all healthcare providers involved issued within the last six Residence permit for medical treatment weeks, makes the application process after one year of Article 64 particularly difficult. Furthermore, being allowed to stay in a reception facility while After one year of postponed departure due the application is processed is only possible to a medical emergency under Article 64, if no appeal with the Council of State has patients can file for a residence permit for been lodged against a negative decision on medical treatment. For this procedure, a request for asylum. previous authorisation to enter the Netherlands is not required. In a report from March 2015518, the Ombudsman also holds a critical view Once the application515 process is regarding the assessment of the BMA about completed with the Immigration and the accessibility and availability of care in Naturalisation Service (IND), the State the country of origin: the sources of the Medical Service (BMA) issues an opinion information used about the country of determining whether there is a medical origin remain anonymous. This makes it emergency, whether the applicant is unable impossible to determine whether the person to travel due to this emergency, and whether who collects the information is qualified the country of origin offers the necessary and uses objectively verifiable information- medical treatment (no mention is made of gathering methodologies and for what level verification that there is effective access). of remuneration, etc. As a result, the When MdM has medical teams in the Ombudsman raises serious questions about concerned countries, they can often provide the quality of the data used. The evidence about non access to care, given to Ombudsman recommended that the BMA the lawyers to help the seriously ill migrant. should take a more critical attitude towards the quality of the research, and that the IND

513 Platform for International Cooperation on September 2013, Undocumented Migrants (PICUM), Undocumented http://www.inlia.nl/uploads/File/Brief%20aan%20s and seriously ill: Residence permits for medical taats%20Teeven%204%20sep%202013%20zorgen reasons in Europe, Brussels, 2009 %20over%20motie_spekman%20opvang%20voor http://picum.org/picum.org/uploads/publication/Un %20zieke%20asielzoekers.pdf documented_and_Seriously_Ill_Report_Picum.pdf 518Care across borders, report following a complaint 514http://www.stichtinglos.nl/content/verblijfsvergu to the Medical Advice Bureau, National nning-medische-behandeling Ombudsman, Marche 2015 515 https://ind.nl/documents/7050.pdf https://www.nationaleombudsman.nl/uploads/rappo 516https://www.ind.nl/EN/Documents/2009%20EA rt/Rapport%202015- UT%20Motie-Spekman.pdf 053%20BMA%20en%20IND%20webversie.pdf 517 Letter from the National Ombudsman to the Secretary of State for Security and Justice, 4

 Page 95 NETHERLANDS should be more critical about BMA the number of groups who can access these decisions as well. services could be restricted522.

Prevention and treatment of infectious diseases HIV and hepatitis screening and treatments are included in the basic package of the compulsory health insurance519. Therefore, every authorised resident in the Netherlands is entitled to be fully reimbursed by their insurance company for costs related to HIV, hepatitis and STI screening, treatment and care (provided that the individual does not have any outstanding “own risk” costs to pay, in which case these costs will be borne by the individual). Treatment for these diseases is certainly part of the “medically necessary care” to which undocumented third-country nationals are entitled, even if many barriers remain in practice (see above). EU citizens with no financial resources or health coverage cannot access testing or treatment. HIV, hepatitis and STI screening can be done at a GP’s office. Furthermore, a national “complementary sexual healthcare subsidies” system allows municipal health services to offer anonymous and free-of- charge STI screening to most at-risk populations in STI polyclinics. These populations are broadly defined and can include migrants with irregular status520: besides men having sex with other men, sex workers and their clients, and people from a region where an STI is endemic, it also includes anyone who has had more than three sexual partners in the last six months, anyone whose partner is considered at risk, patients who show STI symptoms and anyone under 25521. However, in the future,

519http://www.soaaids.nl/nl/professionals/interventi http://www.aidsactioneurope.org/en/publication/acc es/structurele-interventies/toegang-soa-en-hiv-zorg essing-hiv-prevention-testing-treatment-care-and- 520Inverardi, Gaia, Accessing HIV prevention, support-europe-migrant-irregular testing, treatment care and support in Europe as a 521https://www.soaaids.nl/nl/professionals/interventi migrant with irregular status in Europe: A es/structurele-interventies/aanvullende-seksuele- comparative 10-country legal survey, Aids action gezondheidszorg Europe, 2016 522http://www.ggdghorkennisnet.nl/?file=13972&m =1375704358&action=file.download

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controlled centrally, responsibility for the NORWAY provision of health care is decentralised.

National Health System Regulation of healthcare At the national level527, 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 security523. (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 services528 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 Act524. 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”525. Finally, the Norwegian Board of Health Supervision529, organized 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 health care system in Norway is a The state is responsible for the specialist public responsibility. It is organized into health services530. Specialist services three levels; the national, regional and comprises hospital services, laboratory and local526. While health care policy is radiology services urgent care and health

523 Norwegian Constitution and Specialist Health Care Act 1999 Section 2-1 e. https://lovdata.no/dokument/NL/lov/1814-05-17 Chapter 2 524http://app.uio.no/ub/ujur/oversatte-lover/data/lov- https://lovdata.no/dokument/NL/lov/1999-07-02-61 19990521-030-eng.pdf 527http://www.hspm.org/countries/norway08012014 525ICESCR, 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 528 https://helsedirektoratet.no/ 526Municipal Health and Care Act Section 3-4 529https://www.helsetilsynet.no/Norwegian-Board- Chapter 3 of-Health-Supervision/ https://lovdata.no/dokument/NL/lov/2011-06-24-30 530 Specialist Health Care Act Op. cit. note 526 Section 2-1.

 Page 97 NORWAY related transportation like the ambulance Accessing Norwegian healthcare system system531. All citizens and authorized 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 health relating to Patients' Rights (Patient’s Rights care.532 As every patient has the right to Act)541. necessary and emergency healthcare from This entitlement is also included in social the specialist health care services533, 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 provider534. municipalities (the Municipal Health and The 428 municipalities535 are in charge of Care Act of 2011) and specialist care (the financing, planning, organizing 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.536 The state finances a this right. significant part of the municipalities’ As stated in the Patient’s Rights Act, healthcare services through direct subsidies Section 1-2, the scope of coverage by the from the State Budget.537 The Norwegian healthcare system can be municipalities have a great deal of freedom extended, as an exception, “for persons who in organizing 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 Everyone has the right to a permanent GP responsible for the provision of statutory and to change this doctor twice a year.542 dental care and have some responsibilities 538 related to public health . It is to be noted that somatic and mental health situations are equalized.543 This Funding means in principal there is no difference in As a public commitment, healthcare in the right to health care regarding somatic or Norway is mostly publicly financed by mental illnesses. state, counties and municipalities taxation539. The rest of the funding comes The National Insurance Scheme from income-related employee and Pursuant to Section 2-1 of the National employer contributions and, in a much Insurance Act544, every person residing in lesser extent, from out-of-pocket- the realm is a mandatory member of the 540 payments . National Insurance Scheme (NIS).

531 Specialist Health Care Act Op. cit. Note 506 538 Op. cit. note 526 Section 2-1 a. 539http://www.euro.who.int/__data/assets/pdf_file/0 532 Ibid. 018/237204/HiT-Norway.pdf 533 Patient´s Rights Act, Section 2-1 b 540Op. cit. note 525 https://lovdata.no/dokument/NL/lov/1999-07-02-63 541 Patient’s rights Act Op. cit. note 531 534 Ibid. 542 Patient´s Rights Act op. cit. note 531 Section 2- 535http://kartverket.no/Kunnskap/Fakta-om- 1c§2 Norge/Fylker-og-kommuner/Tabell/ 543Syse, Aslak,”Pasient- og brukerrettighetsloven 536http://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 544National Insurance Act - 1997 537 The Municipal Health and Care Act Op. cit. note https://lovdata.no/dokument/NL/lov/1997-02-28-19 526 Section 11-5.

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However, one must have an authorized The scope of the NIS coverage is not residency in Norway to be a member of the precisely defined. In practice, it also NIS. covers556: Tourists are not covered by the NIS,  Hospital and ambulatory care, if it is however, they may be covered by EEA- essential for the patient regulations or a reciprocal agreement  Emergency care between Norway and their country of  Rehabilitation origin545.  Drugs included on the «blue list» i.e. approved prescription drugs The national Insurance Scheme covers the  Dental care for children and costs related to health care service for all vulnerable groups 546 citizens who are members of NIS .  Medical eye-care (glasses excluded)  Home nursing The scope of NIS coverage is determined by the Parliament, in accordance with the Cost sharing National insurance Act547. It includes: GP and outpatient specialist visits require  Examination and treatment by a flat fee co-payments (in 2015, NOK 141 doctor548, a psychiatrist549 and under (€15.8) and NOK 320 (€35.9) per visit, certain circumstances a respectively).557 chiropractor550  Physiotherapy551 Covered prescription drugs also require a  Treatment related to language and flat fee contribution of NOK520 (€58.4) per speech defects552 prescription, as do radiology and laboratory  Treatment by an orthopaedist553 tests (of NOK227 (€25.5) and NOK50 558  Tests and examinations at private (€5.6) in 2015, respectively) . laboratories and Roentgen institutes, 554 Certain groups of people are exempted from including x-rays cost-sharing provisions559:  Dental care but only if related to diseases555  Children under the age of 7 are exempt from cost-sharing for treatment received from a physician or a physiotherapist, essential drugs and travel expenses

545 Norwegian state party´s report 2012-10-29 UN´s 0the%20statutory%20financing%20system&Type= Committee on Economic, Social and Cultural Rights Section para 395 557 The Commonwealth Fund, 2015 international 546 National Insurance Act Op. cit. note 524 Section Profiles of health Care Systems, January 2016, p. 5-2 134 547 Op. cit. note 544 http://www.commonwealthfund.org/~/media/files/p 548 National Insurance Act Section 5-4 ublications/fund- 549 National Insurance Act Section 5-7 report/2016/jan/1857_mossialos_intl_profiles_2015 550 National Insurance Act Section 5-9 _v7.pdf 551National Insurance Act Section 5-8 558 Ibid. 552National Insurance Act Section 5-10 559 Ringard Å, Sagan A, Sperre Saunes I, Lindahl 553 National Insurance Act Section 5-10-a AK. Norway: Health system review. Health Systems 554 National Insurance Act Section 5-5 in Transition, 2013, p. 58 555 National Insurance Act Section 5-6 http://www.euro.who.int/__data/assets/pdf_file/001 556http://www.hspm.org/countries/norway08012014 8/237204/HiT-Norway.pdf /livinghit.aspx?Section=3.3%20Overview%20of%2

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 Children under the age of 16 receive This amount is decided by the Parliament free physician treatment and access to every year. In 2016 the amount was set at drugs from the «blue list» and are NOK2185563 (€245). exempted from cost-sharing for travel expenses560. Once this limit is reached, the national  Children under the age of 18 are Insurance Scheme issues an exemption card exempt from co-payments for and covers its holder’s health expenses for 564 psychotherapy and dental treatment the rest of the calendar year . Cost-sharing  Pregnant women receive medical for children under the age of 16 is included examinations during and after with one parent’s ceiling: they do not pay 565 pregnancy for free the cost-sharing fee for the first ceiling .  Consultations for prevention and A second ceiling is also set every year by treatment of transmittable diseases the Parliament for costs in regard to566: and treatment of sexually transmitted diseases are free  Dental care (only related to health  Hospital admissions and inpatient issues for special groups of persons) treatment are free  Physiotherapy  Fees for accommodation in Services provided by non-contracted rehabilitation centres private providers and goods and services  Treatment abroad excluded from the statutory coverage have to be fully paid for561. As of 2016, the amount of the second ceiling was set at NOK2670567 (€300). Cost shared ceiling A cost shared ceiling was introduced in the These two ceilings are not related to 1980’s to limit individual’s healthcare individual income. expenditure. With this free pass system, The Ministry of Health issues regulations personal contributions are limited to a concerning deductible plans568 certain amount per year for the following 562 goods and services : There is also a safety net: if the treatment is necessary, but not mentioned in the  Services from doctors National Insurance Act, the National  Services from psychologists Insurance Scheme may cover the costs for  Important medication and medical this treatment as well, under certain equipment conditions set forth by the Ministry of  Transport costs Health569.  Radiological examination and treatment Healthcare providers have to inform the  Laboratorial tests patients about the duty to pay and to  Polyclinic healthcare indicate an approximately amount before

560 Patient’s travel regulation – 2015, §24 565 Op. cit. note 559, p. 60 https://lovdata.no/dokument/SF/forskrift/2015-06- 566 National Insurance Act Op. cit. note 544 Section 25-793 5-3§2 561 Op. cit. note 559, p. 66 567https://helsenorge.no/betaling-for- 562 The National Insurance Act Op. cit. note 544 helsehjelp/frikort-for-helsetjenester Section 5-3§1 568 National Insurance Act Op. cit. note 544 Section 563https://helsenorge.no/betaling-for- § 3-5 last paragraph helsehjelp/frikort-for-helsetjenester 569 National Insurance Act Op. cit. note 544 Section 564 National Insurance Act Op. cit. note 544 Section 5-22 5-3§3

 Page 100 NORWAY they provide health services. They cannot refuse to give emergency health care to a claim payment in advance570. person on the basis that he or she is unable to pay”576. Individuals who are not able to pay the patient charge can apply for social support, In Circular letter I-2011-5577 chapter 3, the according to the Social Care Act.571 This Ministry of Health specifies that the Act applies to all persons residing in the healthcare provider cannot claim payment realm572, although exceptions can be made in advance for specialist health care, which regarding people who do not reside cannot be postponed. permanently in the realm. Barriers to access to healthcare Voluntary health insurance Compared to other countries, Norway has As, in principle, all Norwegians are covered long waiting times for hospital treatment, by the public insurance scheme, voluntary especially for elective surgery578. health insurance does not play a significant role in the Norwegian health system. Another difficulty in access to healthcare is related to the sometimes long distances Most voluntary health insurance schemes between populated areas in Norway and the offer supplementary cover and shorter lack infrastructures connecting some of waiting times for publicly covered services them. People living in rural and remote and specialist consultations in private parts of Norway may experience difficulties facilities573. and have to travel longer to access healthcare. GPs are fairly well distributed Urgent medical assistance across the country, but practising specialists Everyone, independently of their are mostly concentrated in big urban areas. immigration or insurance status, is entitled GPs in remote areas often have to treat to emergency healthcare and care that conditions that would be handled by cannot wait574. This applies both to somatic hospitals in other parts of the country579. and mental health. Access to healthcare for migrants The determination of the urgency of the situation is made by the medical personnel. Asylum seekers and refugees Moreover, everyone is entitled to an All Norwegian nationals and authorized assessment of their health needs.575 residents are entitled to public healthcare. The Norwegian government has many As authorized residents pursuant to the times stated that “it is not […] permitted to Immigration Act580 asylum seekers and

570 Søvig, Karl Harald. ”Tilgang til velferdstjenester 576 Norwegian state party´s report 2012-10-29 UN´s for irregulære migranter etter det norske regelverket Committee on Economic, Social and Cultural Rights I: Eksepsjonell velferd? Irregulære migranter i det para. 395 norske velferdssamfunnet. Bendixen, Synnøve K 577Op. cit. Note 574 and others (Red). Norway, Oslo. 2015, p. 56 578http://www.oecd.org/norway/Health-at-a-Glance- 571 Social Care Act Sections 18 & 19. 2015-Key-Findings-NORWAY.pdf https://lovdata.no/dokument/NL/lov/2009-12-18- 579http://www.hspm.org/countries/norway08012014 131 /livinghit.aspx?Section=7.3%20User%20experienc 572 Social Care Act Op. cit. note 571 Section 2. e%20and%20equity%20of%20access%20to%20he 573 Op. cit. note 557 alth%20care&Type=Section 574 Circular letter I-2011-5 chap 2.1 580 Immigration Act - 2008 https://www.regjeringen.no/no/dokumenter/i- https://www.regjeringen.no/en/dokumenter/immigr 52011-helsehjelp-til-personer-uten-fas/id662225/ ation-act/id585772/ 575 Ibid.

 Page 101 NORWAY refugees are entitled to the same access to Pregnant asylum seekers and refugees 581 healthcare as Norwegian citizens , though Pregnant woman seeking asylum are with some exceptions related to the 582 entitled to the same access to healthcare National Insurance Scheme . than Norwegian women affiliated to the During the transit phase before being National Insurance Scheme, though with 587 transferred to a reception centre, some minimal exceptions . immigrants are obliged to undertake a They have access to contraceptive health examination at the transit reception counselling and to pregnancy termination centre. The main purpose of this measure is free of charge. They have to pay a fee of to detect infectious or severe diseases as 583 NOK150-200 (€16-23) for a GP tuberculosis . consultation. During the three first month of the asylum Rubella vaccines are offered free of charge application, another country can request the to any woman of childbearing age who does responsibility to consider it. Pursuant to the not have immunity against rubella588. “Dublin III” European Regulation584, only one country can examine an asylum Children of asylum seekers and refugees application. Thus, if this occurs, the asylum As authorized residents, children of asylum seeker will lose his status of authorised seekers have the same access to public resident in Norway and every right attached health care, medical and dental care as to it. children of Norwegian nationals589. Asylum seekers whose application received a final refusal are considered as Undocumented migrants undocumented migrants regarding access to Pursuant to the Regulation 1255 on the right healthcare. Yet, the NIS can financially to healthcare for people without a cover health care regulated in chapter 5 of permanent residency in Norway of 2011590, the National Insurance Act585 if it is acute undocumented migrants are only entitled to care586. The Directorate of Health and emergency healthcare591, and to “most Social Care specified that this regulation necessary healthcare”592. applies solely for people who unsuccessfully applied for asylum, not to all However, no provision prohibits to provide undocumented migrants. healthcare to undocumented migrants. The right to emergency healthcare covers both the primary and the specialist

581 The Patient´s Rights Act Section 1-2, The 586 FOR-2008-05 §2 Regulation 1255 Section 2, and the Specialist Health 587The Parliament has delegated regulation Care Act Chapter 5, Circular letter I-2/2008 chapter competence to the Government according to 2 Folketrygdloven § 2-16, and FOR-2008-05-14-460. 582 The Parliament has delegated regulation 588http://www.euro.who.int/__data/assets/pdf_file/0 competence to the Government according to The 018/237204/HiT-Norway.pdf, p.126 Public Insurance Scheme Act Section 2-16, and 589 Cf. note 567 FOR-2008-05-14-460.Ordinance on Insurance 590 Regulation 1255 on the right to healthcare for Coverage for Asylum Seekers and their Family people without a permanent residency in Norway of Members - 2008 16th December 2011, implemented on 1 January https://lovdata.no/dokument/SF/forskrift/2008-05- 2012 14-460 https://lovdata.no/dokument/SF/forskrift/2011-12- 583http://www.euro.who.int/__data/assets/pdf_file/0 16-1255 018/237204/HiT-Norway.pdf, p. 144 591 Regulation 1255 §3 584 Op. cit. note 174 592 Regulation 1255 §4-5 585 Op. cit. note 541

 Page 102 NORWAY healthcare593. It applies to both somatic and includes evaluation, treatment and mental health. Undocumented migrants care. have the same right as every other citizen in Norway when it comes to quantity and Furthermore, if an undocumented migrant quality of healthcare. They also have the suffers from a mental illness and is an right to examination and a right to access to “evident and serious danger” for himself the documents and information about their and others599, he will be entitled to, and can condition. If necessary, supplementary be forced to, get mental healthcare information about the patient shall be regardless of the “most necessary gathered.594 healthcare, which cannot be postponed” threshold. Health care is considered “most necessary” when it cannot be postponed without Payment of health services imminent risk of death, permanent severe Undocumented migrants have to pay for all disability, serious injury or pain595. the healthcare goods and services they receive. However, the healthcare provider It is meant as a right to healthcare when the cannot claim payment in advance if it is patient is at a stage where healthcare is emergency care or most necessary health necessary, but the state of the patient is not care which cannot be postponed600. Besides, critical at the time of the health evaluation. some exemptions exist for care received by Hence, if it is necessary to treat the children and pregnant women. condition during the timeframe of three weeks determined by the Ministry of The price is an important barrier to Health596, one has the right to health care.597 healthcare for undocumented migrants, who If not, the Ministry of Health considers that rarely can afford healthcare and often forgo this will be enough time for the medical treatment because of the risk to be undocumented migrant to leave the country. billed more than they can afford. The right to most necessary healthcare can If the undocumented migrant is unable to also be interpreted as applying in cases pay for specialist healthcare, the care where imminent risk of death, permanent provider has to cover the price of the severe disability or serious injury or pain service, according to the Specialist could appear within three weeks. healthcare Act Section 5-3 601. Pursuant to section 5 of the 1255 As to primary healthcare, it is not Regulation598, medical care that cannot wait specifically regulated whether a provider also includes: has to cover the price of the service if an undocumented migrant patient does not  necessary care for new-borns have sufficient means to pay for it.  abortion, and  healthcare related to control of The regulations are also unclear concerning communicable diseases, which the coverage of the fees for necessary medicine for migrants without means. The

593 Regulation 1255 Section 3, The Patient´s Rights 599 Regulation 1255 Op. cit. note 590 Section 5. The Act Op. cit. note 513 Section 2-1a §1 and 2-1b §1 criterion in Regulation 1255 is very similar to the 594 Circular letter I-2011-5 Op. cit. note 554 one in the Mental Health Care Act Section 3-3 nr. 3 595 Regulation 1255 §5 a) litra b, however, it determines a lower threshold and 596 See Circular letter I-2011-5 Op. cit. note 554 chap covers a larger group of people. 2.2. §2 600 Op. cit. note 570 597 Ibid. 601 Op. cit. note 526 598 Op. cit. note 590

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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 607 these expenses for undocumented migrants. Since the 2011 Regulation 1255 , children The Norwegian Directorate of Health and of undocumented migrants have, as their Social Care acknowledged the need for new parents, the right to emergency healthcare guidelines related to this, and passed the and to necessary healthcare that cannot be 608 question to the Ministry of Health and postponed . Social Care. An exception was made in 2011 to the Undocumented pregnant women provision of necessary healthcare to children when it is in the interest of the child Undocumented women have the right to that the healthcare shall not be provided. receive antenatal, delivery and postnatal This exception regards both primary and 602 care, but they have to pay for it . specialist healthcare and was made in Indeed, undocumented pregnant women regard to children who are about to leave the have the same right to antenatal care as country. 603 Norwegian women. This includes Thus, if the treatment cannot be fulfilled preventive, primary and secondary health before the child leaves the country and an care. The guidelines set forth by the unfinished treatment will harm the child, Directorate of Health and Care Services the health care personnel who knows about concerning antenatal care apply for the the departure, shall not start the 604 undocumented pregnant women . treatment609. As follows, access to As health care regarding giving birth is necessary healthcare for undocumented considered as “emergency help”, children is left to the personal appreciation undocumented women are entitled to such of the consequences of treatment in regard care605. to a possible departure date made by the healthcare personnel. Furthermore, women have the same rights to termination of pregnancy as Norwegian The entitlement of undocumented children women606. to GP services is unclear. Although the Ministry of health and Care Services issued If an undocumented pregnant woman a decision regarding this which supposedly cannot afford to pay for maternity care, she excludes them from the right to GP might get it for free if she proves her lack of services610, it can be argued that the financial means. Government meant to exclude children of undocumented migrants only from the GP- Children of undocumented migrants arrangement as it is organized for the Before 2011, it was commonly considered nationals, and not the right to a similar in Norway that children of undocumented service of payment claims do not apply for children of undocumented migrants611.

602 Circular letter I-2011-5 pkt. 3 Op. cit. note 574 606Regulation 1255 Op. cit. note 590, Section 5c. 603 Circular letter I-2011-5 Op. cit. note 574 chap 2.3. 607Op. cit. note 570 604Circular letter I-2011-5 Op. cit. note 574 pkt. 2.3 608Regulation 1255 Op. cit. note 590, Sections 3 and See the guidelines here: 4 https://helsedirektoratet.no/Lists/Publikasjoner/Atta 609Circular letter I-2011-5 Op. cit. note 574, p. 6 chments/404/National-clinical-guideline-for- 610Op. cit. note 570, p. 55 antenatal-care-short-version%20-IS-1339.pdf 611Op. cit. note 570, p. 57 605 Regulation 1255 Op. cit. note 590 Section 3

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The health care provider cannot claim Unaccompanied minors payment in advance, or collect a payment When the unaccompanied minor is an claim after the health care is provided612. asylum seeker, he/she is considered as an Termination of pregnancy authorized resident and is thus entitled to the same rights as a Norwegian citizen in Every woman in Norway has the right to terms of healthcare. pregnancy termination following the Termination of Pregnancy Act613, The authorities responsible of regardless of her immigration status. unaccompanied minors are the Immigration Abortion is free for Norway nationals and Directory (UDI) 619 and the Children women legally residing in Norway. Others welfare authorities620, along with the have to pay for it, but the hospital cannot healthcare authorities. require prepayment614. Unaccompanied minor asylum seekers have EU and EEA citizens the right to a provisional guardian who shall assist them in health and legal procedures Norway is not a member of the European and communicate with the authorities cited Union (EU), but is a part of the EEA- above621. agreement. Most of minor asylum seekers obtain an EEA and EU citizens with an authorized authorized residency: in 2015, 92% of residency are entitled to the same healthcare unaccompanied minor’s obtained it, 89% as as Norwegian citizens, usually upon refugees and 4% on humanitarian presentation of their EHIC615. They have to grounds622. pay the patient charges as Norwegian citizens616. Some fees may be reimbursed If an unaccompanied minor does not seek by their country of origin617. asylum or did not obtain it, he/she is entitled to the same rights as children of The first three month of residence are undocumented migrants. authorized without condition for EU and EEA citizens. To stay more than three month, one has to have sufficient Protection of seriously ill foreign economical means. EEA citizens seeking a nationals job can stay for up to six month without In Norway, a residence permit can be 618 registration . granted to a foreigner if he has strong humanitarian needs or an extraordinary

612 Søvig 2013, Karl Harald I: Undring og 616 Circular letter I-2/2008 Op. cit. note 615 p. 5 erkjennelse: Festskrift til Jan Fridtjof Bernt, 2013, 617 Op. cit. note 615 Rasmussen, Ørnulf; Schütz, Sigrid Eskeland; Søvig, 618 Circular letter RS 2011-037 chap 3 Karl Harald (Red.)Fagbokforlaget, Norway, Bergen https://www.udiregelverk.no/no/rettskilder/udi- 2013, p. 707 rundskriv/rs-2011-037/ 613Termination of Pregnancy Act - 1975 619 https://www.udi.no https://lovdata.no/dokument/NL/lov/1975-06-13-50 620http://www.bufdir.no/Statistikk_og_analyse/Opp 614https://helsedirektoratet.no/folkehelse/seksuell- vekst/Barn_som_soker_asyl/Enslige_mindrearige_a helse/abort sylsokere_EMA/ 615Circular letter I-2/2008 621http://www.noas.no/wp- https://www.regjeringen.no/no/dokumenter/rundskr content/uploads/2013/12/Brosjyre-EMA- iv-i-22008/id500745/ and Engelsk_web.pdf https://helsenorge.no/foreigners-in-norway/health- 622 Op. cit. note 620 care-benefits-during-a-temporary-stay-in-norway

 Page 105 NORWAY integration, based on an overall assessment of his situation623. 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 to stay in Norway, for instance if it is impossible for him to be treated in his 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 Diseases624. This comprises evaluation, diagnoses, treatment, care and other necessary healthcare625, which people receive for free. Access to healthcare related to infectious diseases is supposedly wide, as it is in the interest of public health to treat everyone. In practice, however, access to treatment of infectious diseases is very limited for undocumented migrants, as they are not entitled to GP consultations.

623Immigration Act Op. cit. note 580 Chapter 5 in the health care regulations towards people with Section 38 unauthorized residency in Norway. Preparatory 624Law on Control of Communicable Diseases-1994 works for the Regulation 1255, p. 15 https://lovdata.no/dokument/NL/lov/1994-08-05-55 http://www.regjeringen.no/contentassets/de615e594 625 HOD 2010, The Ministry of Health and Care e94466085abb7b39e77d303/hoeringsnotat.pdf Services, Hearing of 25.10.2010 regarding changes

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insurance system. The NHIF is the third ROMANIA party payer of the system and its main financial source. It manages the funds National Health System collected by the National Agency for Fiscal Administration, subordinated to the Constitutional basis Ministry of Finance. The Romanian Constitution of 1991626 The central authority is the Ministry of guarantees protection of health as a Health (MoH), responsible for regulation fundamental right in its article 34, which and legislative initiatives, health policy 628 bounds the State to take measures to ensure formulation and public health . Pursuant public hygiene and health. to the Law on Healthcare Reform, the MoH is also responsible for establishing quality Health is also acknowledged as a right at criteria for provided health care, along with work in article 41 of the Constitution and as the National Health Insurance House a part of living standards to preserve in (NHIH)629. article 47. Article 49 also prohibits the Some of the Ministry of Health’s employment of minors in activities that may responsibilities have been gradually harm their health. transferred to the local public authorities The exercise of the right to healthcare may through decentralization, as the ownership be restricted by law, but, pursuant to article and administration of public hospitals and 53 of the Constitution, only without the responsibility for the delivery of several discrimination and without infringing on public healthcare services at the local level, the existence of this right. including school medicine, community nurses or Roma health mediators. 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 reform627 of 14 April 2006. It governs the Ministry of Social Solidarity and Family functioning and the principles of the and the Ministry of Education630. system, determines the categories of Romania is administratively divided into 41 insured population, the benefits they are counties and the Municipality of Bucharest. entitled to and the categories of insured In each county and in Bucharest, there is a population exempted from the payment of Ministry of health’s deconcentrated body: a contributions. Public health Directorate (PHD) 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 body, which administrates the social health Insurance House subordinated body: a

626 http://www.constitutiaromaniei.ro/ http://www.euro.who.int/__data/assets/pdf_file/000 627Law on healthcare reform – 2006 8/95165/E91689.pdf http://legislatie.just.ro/Public/DetaliiDocument/711 629 http://www.cnas.ro/ 39 630 Op. cit. note 628, p. 43 628 Vlădescu C, Scîntee G, Olsavszky V, Allin S and Mladovsky P. Romania: Health system review. Health Systems in Transition, 2008; 10(3), p. 25

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County Health Insurance House (CHIH), the lowest public budget devoted to health which sign contracts with the county among the EU Member States 633. 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 Romania634. contribution mechanism is social insurance631. The insured population has access to a basic package of health services, pharmaceuticals Most of the health funds derive from the and medical devices. Covered medical population, predominantly through third services include635: party payment mechanisms i.e. social health  insurance contributions and taxation; and preventive healthcare services  through out-of-pocket payments i.e. co- curative health services  payments and direct payments. ambulatory healthcare  hospital care The contribution for the mandatory health  dental services insurance amounts to 5.5% of employee’s  laboratory analyses monthly wage plus 5.2% added by their  medical emergency services employers632. It is collected into a national  complementary medical health insurance fund, included in the state rehabilitation services budget.  pre-, intra- and post-birth medical Each year, a Governmental Decision assistance (yearly framework Contract) is agreed  home care nursing between the Ministry of Health, the  prescribed medication National Health Insurance House and the  health care materials College of Physicians; it settles which  orthopaedic devices and prosthetics health services shall be contracted and  medical transport reimbursed within the health insurance system and the level of payment for both Insured persons are entitled to medical public and private healthcare providers. services from the first day of sickness, or the date of an accident, until they are fully Healthcare funding is completed by recovered. national public health programs financed by the state budget and addressing the entire The non-insured population has access to a population, including uninsured people. minimum package of services, which Since the fall of the communist regime in includes far less services: 1990, the Romanian government allocates  some preventive services each year an increasing amount of financial  medical services for communicable resources to the health care sector. Still, this diseases that may represent a public sector is severely underfunded, as Romania health threat is allocating only 5.6% of its GDP to health,

631 Op. cit. note 628 p. 61 http://ec.europa.eu/health/reports/docs/health_glanc 632http://www.euprimarycare.org/column/primary- e_2014_infograph_en.pdf care-romania 634 Op. cit. note 628, pages 47-48 633Health at a Glance: Europe 2014, European 635Detailed list available at Commission, 2014 http://www.cnas.ro/casmb/page/care-sunt- serviciile-medicale-de-care-beneficiez.html

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 pregnancy related care (pre- and reflecting a lack of concern for patient’s postnatal care, delivery) rights in certain medical facilities.638  emergency medical services. Recent reforms Uninsured people are required to pay for Most recent law reforms in Romania medical ambulatory care they receive, focused on harmonising the national except in cases comprised in the minimum legislation with the EU law, as the Directive package of services. 2011/24/EU on patient’s rights in cross- border healthcare in 2014, transposed by an Pursuant to article 224 of the Law on ordinance of 29 January 2014639. healthcare reform636, certain categories of insured population are exempted from the Reforms were taken recently regarding the payment of the contribution, as: improvement of the minimum benefit package for the uninsured, starting January  children up to 18 years old 2015, with several additional health  young people up to 26 years old if services, including prevention and they are enrolled in education reproductive health/family planning  pregnant women with no income or services; and regarding the increase of on a sub-minimum income accessibility to subsidized prescribed drugs,  disabled persons with no income through the introduction of HTA (health  inmates technology assessment), introduction of  war veterans new innovative molecules on the list of Children up to 18 and young people subsidized drugs, implementation of enrolled in a form of education, patients policies for the reduction of the price of with diseases included in national health medicines, improved regulations in the programs with no income, persons on a very pharmaceutical sector, related to the claw- low income and pregnant women are also back tax, the patient electronic card and exempted from co-payments637. electronic prescription of subsidized drugs. Barriers to access to healthcare The ongoing National Health Strategy 2014-2020, adopted through the Access to healthcare in Romania is Governmental Decision characterized by strong disparities between 1028/18.11.2014640 defined specific the rural and urban regions, notably because objectives in the areas of public health, most physicians are concentrated in the big health services and regarding vulnerable cities, leaving the rural areas with categories of people. insufficient human resources for healthcare. Another important barrier to access to Access to healthcare for migrants healthcare is the financial one, associated with formal and informal out-of-pocket- Asylum seekers, refugees and those payments. In 2011, over 60% of patients eligible for subsidiary protection made informal payments to their doctors, Foreigners who received a form of international protection in Romania have

636 Op. cit. note 627 639 OUG 2/29.01.2014, integrated in the consolidated 637 Law on healthcare reform Op. cit. note 627 reform law 95/2006 Article 225 http://www.anm.ro/anmdm/_/LEGI 638 World Bank. 2011. Romania - Functional review: ORDONANTE/OUG 2 din 29.01.2014.pdf health sector. Washington, DC: World Bank., p. 8 640http://ms.gov.ro/upload/HG%201.0282014%20- http://documents.worldbank.org/curated/en/2011/05 %20Strategia%20Nationala%20de%20Sanatate%2 /17056888/romania-functional-review-health-sector 02014-2020.pdf

 Page 109 ROMANIA access to medical care in the same obligation to present themselves to the conditions as Romanian citizens, pursuant medical examinations that are established to article 7 of the 2004 Government for them. Ordinance no. 44/2004 regarding the social However, article 8 of the Methodological integration of foreigners who were granted 641 Norms of Application of Law no. a form of protection in Romania . 122/2006643 specifies that asylum seekers Article 1 of the 44/2004 Ordinance states have to be present only for the medical that its aim is to facilitate the integration of examinations which are established for foreigners with a residence through reasons of public health. provision of the right to healthcare and Romania is bound by the Dublin III social assistance, among others. Regulation644, which determines the The main law regulating the status and responsibility of European states in the rights of refugees and asylum seekers in consideration of asylum applications. Romania is the 2006 law no. 122/2006 However, Romania is mostly seen as a regarding asylum in Romania642. transit country by migrants who wish to seek asylum in other EU countries645. As stated in article 17, para.1 pt. m of the 112/2006 law, individuals who seek a form The International Organization for of international protection are entitled free Migration (IOM), the UNHCR and the of charge to: Romanian Government have a tripartite agreement regarding refugees in Romania.  primary medical care The outcome of this agreement is the Centre  adequate treatment for emergency transit in Timisoara. This  emergency hospitalization centre is an “evacuation facility”, meant to  healthcare and treatment in cases of provide temporary shelter for refugees who acute of chronic diseases which need to be immediately evacuated from imminently endanger their life. their first country of refuge and will be relocated to another one646. It also operates Furthermore, the 122/2006 law affirms in as a non-secure reception centre for asylum its article 17 para 1 pt. n the right of asylum seekers being processed under Romanian seekers with special needs to receive national law647. adequate care. Refugees in the Emergency Transit Centre These healthcare services are provided by can receive a complete medical the medical services of the accommodation examination including a laboratory analysis centre or by other health units. and pulmonary radiography for those older Article 19 pt. h of the 122/2006 law provides that, individuals who seeks a form of protection have - among others - the

641Ordinance no. 44/2004 file/Legislatie/HOTARARI-DE- http://legeaz.net/og-44-2004-integrarea-sociala-a- GUVERN/HG1251-2006.pdf strainilor/ 644 Op. cit. note 174 642Law no. 122/2006 regarding asylum in Romania, 645 European network for technical cooperation on last amended through Law no. 137/2014 on the the application of the Dublin II Régulation,2012, approval of the Government Ordinance no. 1/2014 National Report Romania, The application of the http://www.prestatiisociale.ro/legi/legea_122_2006. Dublin II Regulation in Romania, p. 22 pdf 646http://www.unhcr-centraleurope.org/en/what-we- 643 Methodological Norms of Application of Law no. do/resettlement/etc-timisoara.html 122/2006 647http://www.globaldetentionproject.org/countries/ http://www.mmuncii.ro/pub/imagemanager/images/ europe/romania

 Page 110 ROMANIA than 15 years of age to establish their health Children of asylum seekers and refugees 648 status, and treatment if needed . Children of asylum seekers benefit from the The refugees benefiting from a transit visa same rights guaranteed to Romanian can stay no longer than six months on Children by the law 272/2004 regarding the Romanian territory. However, this period protection and promotion of children's can be prolonged should a certain treatment rights651 as stated in its Article 3. be necessary e.g. for tuberculosis. If a child Pursuant to article 46 of the 272/2004 Law, is diagnosed with tuberculosis, his or her children of asylum seekers and refugees whole family can usually remain with them have the right to benefit from the highest for the prolonged period, pursuant to Article 2 attainable standard of health and to benefit 69 of the Government Ordinance 194/2002 from the medical and recovery services regarding the regime of foreign nationals 649 necessary to ensure the realization of this . right. Before they leave the centre, refugees are Moreover, the access of children to medical submitted to a fitness for travel procedure and recovery services, as well as to the that determines if they may travel by air. It adequate medication pertaining to their is a medical examination that takes place state of health is guaranteed by the state and 24-48 hours before take-off. Pregnant the costs are covered by the National health women of more than 32 weeks are not Insurance Fund and by the state budget652. allowed to fly. Children of asylum seekers are exempted Pursuant to article 17-H of the Government 650 from paying the contribution to the Ordinance no. 44/2004 , asylum seekers mandatory health insurance and can benefit have the right to work and are entitled to from it until they are 18653. assistance in job search. Having the right to work makes asylum seekers eligible for Undocumented migrants health insurance, if they can afford to pay the contribution. Undocumented migrants are only entitled to free emergency care in case of epidemic Pregnant asylum seekers and refugees diseases, pregnancy related care and family planning support. Pregnant asylum seekers are entitled to ante- and post-natal care and to family They can access all other health services but planning services. only if they can cover the full costs.

Family planning services are included in the Pursuant to Article 1022 of the Government basic package of services for insured Emergency Ordinance 194/2002 regarding women and minimum package of services the regime of foreign nationals654, if an for uninsured women and thus reimbursed undocumented migrant is unable to leave by the county HIH. the Romanian territory for objective reasons independent of his will, he can be granted a

648http://www.unhcr.org/50aa08d39.pdf http://www.mmuncii.ro/j33/images/Documente/Leg 649 Government Ordinance 194/2002 regarding the islatie/L272-2004-R.pdf regime of foreign nationals 652 Ibid. Article 46 http://www.mae.ro/sites/default/files/file/userfiles/fi 653 Law on healthcare reform op. cit. note 627 article le/pdf/servicii- 213 consulare/2012.07.30_oug_194_2002.pdf 654 Government Emergency Ordinance no. 194/2002 650 Op. cit. note 641 regarding the regime of foreign nationals Op. cit. 651 Law no. 272/2004 regarding the protection and note 642 promotion of children's rights, republished in 2014

 Page 111 ROMANIA status of toleration for a renewable period parents do not benefit from health of six month. insurance659.

Throughout the period of the tolerated stay, Foreigners in accommodation centres foreigners have access to work in the same Article 224, para. 2, pt. e of the Law on conditions as Romanian citizens, which Healthcare Reform660 provides that opens the possibility to be insured upon foreigners who stay in accommodation payment of the contributions655. centres in order to be returned or expulsed Undocumented pregnant women and also those who are victims of human trafficking and are currently undergoing The Law on Healthcare Reform stipulates identification procedures benefit from universal healthcare services for all health insurance without having to pay the pregnant women, regardless their health contribution. insurance statute656. In addition, According to Article 46 of the EU citizens 657 Law no. 272/2004 regarding the The European health Insurance Card, protection and promotion of children's defined in the Law on healthcare reform661, rights, all necessary measures are to be allows EU citizens who hold it to access taken in order to ensure that pregnant healthcare in Romania. women receive medical services in the pre- In accordance with Directive 2004/38/EC , intra- and postnatal period, independently 662 of their insurance status. of 29 April 2004 , after three months of residence in Romania, EU citizens who do Family planning services are included in not have sufficient financial means lose both the basic and the minimum packages their entitlement to access to the same of services delivered at the primary healthcare services as Romanian nationals. healthcare level and reimbursed by the Destitute EU citizens are considered as county health insurance houses. undocumented migrants and have the same access to healthcare as them. Children of undocumented migrants However, pursuant to Article 224 of the Article 224 of the Law on healthcare Law on healthcare reform663, children of reform658 states that all children under 18 EU citizens have access to health insurance years of age and up to 26 years of age if without having to pay the contribution. enrolled in any form of education benefit from health insurance, without having to Unaccompanied minors pay the contribution. As minors, unaccompanied children are In practice, children of undocumented entitled to free health insurance, pursuant to migrants experience difficulties registering article 224 of the Law on healthcare on a family physician's list because their reform664.

655Inspectorate-General of Immigration information Immigrants -Final Research Report", Electronic Website Edition, 2015, http://igi.mai.gov.ro/detalii/pagina/ro/Munca/73 http://www.fundatia.ro/sites/default/files/BII%2020 656Law on healthcare reform Op. cit. note 627 15%20final%202015.pdf, p. 78 Articles 224 & 225 660 Op. cit. note 627 657Op. cit. note 651 661 Op. cit. note 627, Articles 325-326 and 327-336 658Op. cit. note 627 662 Op. cit. note 189 659Ovidiu Voicu, Andra Bucur, Victoria Cojocariu, 663 Op. cit. note 627 Luciana Lăzărescu, Marana Matei, Daniela 664 Op. cit. note 641 Tarnovschi, "The Barometer for the Integration of

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Unaccompanied minors are one of the who are not able to pay a health insurance special cases regulated by the Government cannot stay in Romania to access Ordinance no. 44/2004 regarding the social healthcare668. integration of foreigners who either have received international protection or a stay Indeed, as stated in article 69 of the 669 permit in Romania or who are EU 194/2002 Ordinance , foreigners who citizens665. undergo a form of long-term medical treatment can have their permit to stay If an unaccompanied child has been granted extended, providing they present a letter of international protection, he/she will be acceptance from a public or private medical entitled to healthcare in the same conditions facility, which should specify the diagnose as Romanian citizens, as stated in article 7 and duration of treatment. A residence of the 44/2004 ordinance. permit may also be issued to a possible Article 35-2 of the 44/2004 ordinance accompanying person if the foreigner is not further provides that unaccompanied able to care for himself, if this is expressly minors who have received a form of mentioned in the letter of acceptance. protection in Romania are included in the children protection system. The Government Ordinance no. 194/2002 regarding the regime of foreign nationals670 If unaccompanied minors are placed in the provides that foreign nationals benefit from care of a person, a maternal nurse or a social protection in the same conditions as residential service in order to receive care Romanian citizens. In practice however, the or protection, their treatment will be only foreigners with stay permits who have periodically verified, pursuant to articles 3 access to the social benefits system are and 46 of the Law regarding the protection foreigners who come for family reunions and promotion of children's rights666. and the persons who have obtained a form of protection in Romania, because they Protection of seriously ill foreign usually have sufficient means of existence nationals and a long stay permit671. Medical care is generally conditioned by According to Article 77, para. 3, pt. c of the payment of the contribution to health 194/2002 Ordinance672, the Romanian insurance and the Romanian law does not Office for Immigration can revoke a stay specifically exempt seriously ill individuals permit if its holder suffers from a disease who do not have an income from paying the that puts national health at risk and refuses health insurance contribution. Thus, unless to submit to the medical treatment measures it is an emergency, foreign nationals who established by the authorities. are not exempted from the mandatory Furthermore, Article 92 of the 194/2002 contribution will only access healthcare if Ordinance states that the removal of the they can afford it. foreigner is prohibited if he/she: Moreover, after the expiration of the foreigner’s permit to stay, it will be possible  is a minor whose parents have a stay to extend it only if he/she has a health permit in Romania insurance667. Thus, destitute ill individuals

665Op. cit. note 641, Article 33 669 Op. cit. Note 674 666Op. cit. note 651 670 Ibid. 667The Barometer for the Integration of Immigrants 671 The Barometer for the Integration of Immigrants op. cit. note 679, p. 67 Op. cit. note 679, p. 73 668The Barometer for the Integration of Immigrants 672 Op. cit. note 674 Op. cit. note 679, p. 77

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 is the parent of the minor Romanian authorities, and to apply the established citizen and has to take care of the measures regarding the conditions for latter or to pay alimony prevention of diseases and for the health  is married to a Romanian citizen and promotion of the individual and public the marriage is not for convenience health. and still effective The diagnosis and of STIs are provided free  is married to another foreigner who of charge for insured and uninsured has a stay permit for the long run and individuals674. the marriage is not for convenience  is older than 80 years of age HIV and Tuberculosis are part of the declared public health priorities in Romania and ambulatory and inpatient medical The same article provides that, even in these services related to these diseases are cases, it will be possible to remove the reimbursed from the health insurance funds, foreigner from the Romanian territory if through contracts signed between county he/she constitutes a danger to public order HIH and medical providers, while treatment or national security of if he/she suffers from is paid by the Ministry of Health though a disease that threatens public health and national health programmes675. refuses to submit him/herself to measures against it. Since 2002, a special law, Law no.584/2002676, regulates the prevention of When the removal has already been HIV/AIDS and the measures to ensure the decided, it can be suspended if there are social protection of people living with HIV justified chances that the foreigner’s life or AIDS. would be put in danger or that they will be submitted to torture or inhuman or The management and control related to HIV degrading treatment in the country he/she is achieved through a national HIV would have to return to, or if the health network, composed by 9 regional centres condition of the foreigner makes it and around 50 county centres. The impossible, pursuant to article 96 para. 1 of prevention services covered by the program the 194/2002 Ordinance. consist in screening tests, prophylactic- post-exposure ARV therapy, information, Prevention and treatment of education, communication activities (IEC) infectious diseases and syringe exchanges. HIV testing services are included in the antenatal health Article 39 of the Law on healthcare services package at national level677. reform673 provides that any person on Prevention interventions in the national Romanian territory must submit themselves health programmes, accessible to uninsured to preventative and combative measures people, are limited to medical services regarding infectious diseases, to thoroughly provided within the health care facilities. respect hygiene and public health norms, to provide any requested information to the

673Op. cit. note 627 http://legeaz.net/monitorul-oficial-221- 674European Centre for Disease Prevention and 2015/ordinul-ministerului-sanatatii-386-2015 Control. Country mission Romania: HIV, sexually 676Law on measures to prevent the spread of AIDS in transmitted infections, and hepatitis B and C. Romania and protection of people living with HIV or Stockholm: ECDC; 2012, p. 1 AIDS – 2002 675MoH Ordinance no 386/2015 for approval of the http://legislatie.just.ro/Public/DetaliiDocument/397 implementing norms for the national public health 44 programs in 2015 and 2016 677Op. cit. note 674, p. 2

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Being funded from the state budget, average 6 years lower than the non-Roma diagnostic and treatment is thus in theory population in Romania681. available free of charge for all citizens, Poor health outcomes are also caused by the regardless of their insured statute. ineffective use of available health services In practice, uninsured HIV positive patients by the Roma population. Indeed, even are asked to either pay the contribution to though a number of health services are free, the health insurance fund or to get a a lot of Romanian Roma do not seek certificate of disability, in order to receive a healthcare because of their lack of financial complete diagnostic, treatment and care. resources and uncertainty about what to Access to prevention of vulnerable groups pay682. as injection drug users is very low. Even though some healthcare services can With the highest tuberculosis incidence be accessed free of charge, Roma among the EU Member States, Romania is individuals often have to forego prescribed also counted among the 18 high-priority treatment because of the price of the countries to fight TB in the WHO European medication. 678 Region . In February 2015, the Roma population faces discrimination in Government issued the Government 679 access to healthcare due to the lack of Decision 121/2015 , endorsing the identity papers, of health insurance and of National Strategy for TB Control 2015 - registration with a family doctor, even 2020, in continuity with the previous though the Law on Healthcare Reform683 national strategy to reduce the mortality and foresees non-discriminatory access to transmission of TB. healthcare for all citizens, based on their The National Institute for Public Health is insurance status and that even the uninsured responsible for the surveillance of STIs, have the right to register with a family hepatitis B and hepatitis C through the doctor and to receive the minimum package National Centre for Communicable Disease of health services. Surveillance and Control (NCCDSC). The health of Roma women and maternal Romania lacks specific detection, mortality are of particular concern, as is also prevention and treatment policies on the prevalence of early marriage and infectious diseases, mostly because of teenage pregnancy. According to the World insufficient budget resources. Bank, the frequency of reproductive health check-ups remains low among Roma The Roma minority women684. The Roma population is particularly present in Romania, as it represents 8.6% of the Prenatal and postnatal care is also low national population680. among Roma women: more than half the adolescent mothers lack counselling during The health of the Roma population is pregnancy and register the highest particularly poor. The life expectancy is on prevalence of non-users (10%) and under-

678 WHO Review of the national tuberculosis 680http://www.touteleurope.eu/actualite/les-roms- programme in Romania en-europe.html http://www.euro.who.int/__data/assets/pdf_file/000 681“Diagnostics and policy advice for supporting 7/269269/Review-of-the-national-tuberculosis- Roma inclusion in Romania”, World Bank, 2014, programme-in-Romania.pdf p.152. 679Government decision 121/2015 http://www.worldbank.org/en/region/eca/brief/roma http://legislatie.just.ro/Public/DetaliiDocument/166 682 Op. cit. note 681, p. 154 577 683 Op. cit. note 627, Article 230 684 Op. cit. note 681, p. 164

 Page 115 ROMANIA users (51,4%) of prenatal care services in 2011685. 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 Immunization Program although they are mandatory and free of charge686.

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 survey687. Roma in Romania face multiple barriers in access to healthcare, as lack of financial means, lack of health education, lack of information on health services and difficulties in the access to health services related to their place of residence if it is in a rural area and discrimination against them.

685Nanu M and all “Evaluarea intervenţiilor din 687 Hidden Health Crisis - A Report by The European programele naţionale privind nutriţia copiilori” Roma Rights Centre: Health Inequalities and IOMC, MS, UNICEF, 2011 Disaggregated Data, October 2013, p.6 686UNICEF, Roma Early Childhood Inclusion http://www.errc.org/cms/upload/file/hidden-health- Report, 2012 crisis-31-october-2013.pdf http://www.unicef.org/romania/RECI-Overview.pdf

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authority is the Ministry of health, which SLOVENIA prepares legislation related to healthcare and health protection, ensures the National Health System implementation of national and international law regarding health and Constitutional basis prepares strategic plans for public health and health financing matters. The Republic of Slovenia Constitution of 28th December 1991688 provides for the The Health Insurance Institute of right to health in its article 51 which states Slovenia691 (ZZZS), based in Ljubljana, is that “everyone has the right to health care the public institute in charge for under conditions provided by law”, the implementation of compulsory health rights to healthcare from public funds shall insurance as a public service. The Institute be provided by law and no one may be is organized in such a way that the service compelled to undergo medical treatment is available to insured persons the nearest as except in cases provided by law”. possible to their home of residence. Institute establishes organizational units for specific Furthermore, Article 13 of the Constitution sectors and for specific areas (Article 69 of states that foreigners benefit from all the the Law on Health Care and Health rights guaranteed by the Slovene Insurance692). Constitution and laws, except for the rights reserved to the citizens of Slovenia. The National Institute of Public Health693 (NIJZ) is the main national institution Organisation and funding of the whose main purpose is to study, protect and Slovenian healthcare system increase the level of health of the population of the Republic of Slovenia through Organisation awareness raising and prevention measures. The legal basis of the Slovenian health In addition to the central role in public system was formed by the Law on Health health activities in Slovenia, the NIJZ is Care and Health Insurance (ZZVZZ) of actively involved in international projects. 1992689. Lastly, four health insurance companies are The Slovene health system comprises two in charge of providing voluntary health types of health insurance: compulsory and insurance in Slovenia. Their function is voluntary or supplementary health determined by the Insurance Act of 17th insurance. January 2000694. The insurance companies can provide only an additional voluntary It is mainly public, with a few private insurance to compulsory insured persons or practices incorporated into the public other supplementary insurances which system and some strictly private service cannot substitute the compulsory insurance. providers690. In 1999, the Health Insurance Card (Kartica Several structures are in charge of zdravstvenega zavarovanja) was healthcare in Slovenia. The highest introduced. This card is a public document

688http://unpan1.un.org/intradoc/groups/public/docu 89171B7F7B7DC1256E890048B206?open&nas=A ments/UNTC/UNPAN014895.pdf ccessing%20healthcare%20in%20SLO. 689 Law on Health Care and Health Insurance – 1992 691 http://www.zzzs.si/indexeng.html http://www.pisrs.si/Pis.web/pregledPredpisa?sop=1 692 Op. Cit. Note 689 992-01-0459. 693 http://www.nijz.si/sl 690For more information see 694http://www.pisrs.si/Pis.web/pregledPredpisa?id= http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/021E ZAKO1636

 Page 117 SLOVENIA that the compulsory insured persons have to who need it to a specialist, to a hospital, to submit to demonstrate their health a medical committee and to the Disability insurance rights. It was an important commission698; prescribe medications and technological step permitting faster medical devices and establish temporary treatment and transfer of data between absence from work699. insured persons, insurers and health care providers as well as the centralization of Access to general practitioners is good in health providers in one network. Slovenia, even in remote rural areas. However, a limit to the Slovene healthcare Funding system is the existence of long waiting lists to access primary care, especially dental Slovenia’s health system, based on the 700 Bismarckian model, is mainly founded by care because of a lack of dentists . compulsory health insurance contributions, Urgent medical assistance can be accessed tied to employment. They amount to 6.36% without the referral of a physician and of employees’ gross salaries and 6.56% without the need to show the Health 695 from their employers . Insurance Card beforehand701. In practice, The remaining funding comes from the medical staff most often ask to see the voluntary health insurance premiums, Health insurance Card. household out-of-pocket and state and The Health Services Act of 13th February municipalities tax revenues. 1992702, last amended on 15th February 2013 is the main legal instrument Accessing Slovenia healthcare system determining the operation of healthcare All Slovenes, persons with an authorization services. to reside in Slovenia and their close family members are entitled to health insurance Following its provisions, health care and care696. services at the primary level are the responsibility of the municipalities and are Access to non-urgent healthcare is possible performed by public healthcare centres, only through personal physicians. Every whereas public health services at the person in Slovenia has to designate a secondary and tertiary level are both general physician of his choice as his/hers provided by the state at a national level703. personal physician and optionally a personal dentist and gynaecologist697. It is to be noted that compliance with the law and general acts of the health Insurance The personal physician is authorized and institute is necessary to be reimbursed for obliged to, among others, refer his patients medical services and other benefits.

695 Table of contributions for different types of 698http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/71 inured persons 1DAD33F7FB1CB8C1257BB000456695. http://www.zzzs.si/zzzs/internet/zzzs.nsf/0dbed6c0a 699 Law on Health Care and Health Insurance op. cit. 93d31d8c1256a67006844b3/7f079796008ee60ec12 note 689, article 81 56d3a00460146?OpenDocument. 700 European Observatory on health systems and 696 Article 15 of the Law on Health Care and Health policies – Health systems and policy monitor Insurance (op. cit. note 689) lists categories of http://www.hspm.org/countries/slovenia25062012/c people entitled to health insurance and care ountrypage.aspx 697 Law on Health Care and Health Insurance: op. 701Rules on compulsory health insurance op. cit. note cit. note 689, Articles 80 to 85, 697 - Article 179 and Rules on compulsory health insurance 702http://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 161 703 Public network of Primary healthcare services of to 180. September 2013, Ministry of Health, p. 8.

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Compulsory health insurance 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 status704. 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 Insurance705 and Rules on implement measures to prevent their compulsory health insurance706. Both of spread, these legal texts define and regulate the  treatment after injury at work nature and extend of the rights of 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 services and transportation The compulsory health insurance is 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 of services of specialized doctors, hospitals or the service institutions; prescription medications;  primary care services, treatments of medical and technical devices; spa dental and oral diseases, healthcare treatments; rehabilitation, ambulance and related to fertility and certain medical other vehicles transportation; and, when devices are covered in the amount of travelling and living abroad, to receive at least 80% of the value of services medical treatment abroad.  health services in continuation to hospital treatment and certain The price of the healthcare services and prescribed medications are covered in goods at the points of use is regulated by the amount of at least 70% of their article 23 of the Law on Health Care and value Health Insurance, which determines the  Not necessary emergency services percentage of the price to be covered and spa treatment are covered up to depending on the service or good and on the 60% 707 person that receives it .  Medical devices for improving vision for adults are covered at up to 50% of For instance, compulsory health insurance the value covers in full708:

 treatment and rehabilitation of children, pupils and students up to 26

704http://www.euro.who.int/__data/assets/pdf_file/0 708 Rules on compulsory Health insurance op. cit. 004/96367/E92607.pdf note 697, article 22 705 Op. cit. note 697 And 706 Op. cit. note 697 http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/87C 707http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/87 028D74130DE0AC1256E89004A4C0C C028D74130DE0AC1256E89004A4C0C

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To the extent provided by the Law on cash benefits in the event of illness, injury Health Care and Health Insurance, the or a specific medical condition. compulsory insurance also covers salary compensation during temporary absence The amount of the value covered generally from work and reimbursement of travel corresponds to the difference up to the full expenses relating to the promotion of health value of services covered by the 712 services. compulsory insurance . Destitute Slovene nationals are entitled to Urgent medical assistance compulsory health insurance709. If they Every person, even uninsured, has the right cannot pay for voluntary insurance apply to urgent medical assistance. for social assistance and meet the conditions to get it, the state pays for the Urgent medical assistance includes medical costs not covered by the compulsory services necessary to maintain life functions insurance. Municipalities too are obliged to or to prevent serious deterioration of health pay contributions for persons listed in condition of suddenly sick, injured and Article 15 of the Law on Health Care and chronically ill people. Services are provided health Insurance, point 21§1710. until the stabilization of vital functions or the beginning of treatment in an appropriate The 1992 Law on Health Care and Health place. Urgent transportation services are Insurance introduced cost-sharing in the included in the urgent services713. form of co-payments: patients in Slovenia are charged a flat rate for most health The urgency of treatment is decided by related services. Vulnerable groups, as assessment of the personal physician or children, unemployed individuals, those competent health committee in accordance with a very low income or chronically ill with the general acts of the Health people are exempted from these fees. Insurance Institute. Consequently, access to healthcare can be denied if the case is Voluntary health insurance considered as non-urgent. Medical In order to be covered for the full value of assistance may also be billed after it health care, it is possible to subscribe to a occurred if the case is later considered as voluntary health insurance in addition to the non-urgent. compulsory one. Abortion is supposed to be comprised in the Voluntary health insurance is managed by urgency situations and free for everyone. private insurance companies, in accordance Yet, it is sometimes considered as non- with the Law on Health Care and Health urgent care and thus billed. Insurance711. Slovenia provides funds from the state Voluntary health insurance covers the budget to cover urgent care for individuals insured costs of healthcare and related of unknown residence and foreign nationals services, supply of medicines and medical from states with whom international 714 devices as well as the payment of the agreed agreements have not been concluded .

709Article 15 Law on Health Care and Health http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/87C Insurance op. cit. note 689 028D74130DE0AC1256E89004A4C0C. 710Op. cit. note 697 713Article 25 of the Law on Health Care and Health 711Ibid. Insurance Op. cit. note 689 712For health services covered by the supplementary 714 Ibid. insurance, see

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Access to healthcare for migrants nurse who decides if the asylum seeker needs urgent care or a medical consultation Authorized non-EU residents in a Health centre. Non-EU citizens with permission to reside Access to healthcare is much more difficult in Slovenia have mandatory health for asylum seekers who are not insurance as employed, self-employed, accommodated in asylum home, mostly students or unemployed persons. Their because they do not have a Health insurance family members are insured if they are Card. They can go to Health centres but the registered as permanent residents in medical personnel is not familiar with their Slovenia, unless differently provided by situation and their rights. international agreement715. It should be noted that, since the 2013 Non-EU citizens with long-term residence “Dublin III” Regulation719, only one permit and registered permanent residence country can consider an asylum application. in Slovenia, receiving financial social Thus, if another country requests the assistance or fulfilling conditions to receive responsibility for the application within the it and their family members716 are entitled first three month of the proceedings, the to the coverage of the difference to full asylum seeker will lose his right to reside in value of health treatment in addition to the Slovenia and any rights attached to it. part covered by the compulsory insurance, unless it is already fully covered. This Refugees and persons under difference is paid by the state717. international protection Refugees have the same rights as the Asylum seekers nationals of the Republic of Slovenia Asylum seekers are only entitled to urgent concerning access to healthcare. medical assistance, which is defined in 720 Article 84 of the International protection Article 89 of International Protection Act Act in force from 4th January 2008718. states that persons who are granted Besides, medical screening may be required international protection in Slovenia have at the entrance of the Slovene territory. the right to reside and to receive healthcare. However, the same article 84 also Refugees are also cited in the Article 15 of determines that vulnerable persons with the Law on Health Care and Health special needs, and exceptionally other Insurance as one of the vulnerable groups asylum seekers, are entitled to additional entitled to compulsory health insurance, health services, including unless they are insured somewhere else. psychotherapeutic assistance approved and Pregnant asylum seekers and refugees established by the Commission designated by the Minister of Health. Asylum seekers are entitled to free contraceptives, abortion, healthcare during In practice, asylum seekers accommodated pregnancy and childbirth, but not to in Asylum Home have access to basic medical examinations by a daily present

715 Article 20 of the Law on Health Care and Health 717 Article 24 of the Law on Health Care and Health Insurance Op. cit. note 689 Insurance op. cit. note 689 716 Law on the exercise of rights from public funds 718International Protection Act (ZMZ) – 2007 (ZUPJS) in force since 2012 - Article 29 http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA KO4911 KO4780 719 Op. cit. note 154 720 Ibid.

 Page 121 SLOVENIA postnatal care721. Women who obtained the pregnancy should be considered as refugee status are entitled to the same care emergency medical assistance. as Slovenia nationals. Pregnant refugee women are thus entitled to pre- and post- Children of undocumented migrants natal care and delivery care. Children of undocumented migrants are not covered by the compulsory health Children of asylum seekers and refugees insurance. Children of Asylum seekers, of Refugees and applicants who are unaccompanied However, Article 9 §25 of the Rules on 725 minors are entitled to healthcare under the compulsory health insurance states that same conditions as nationals of the children up to 18 years attending school and Republic of Slovenia. This means that there not compulsorily insured, because their are entitled to compulsory insurance which parents do not care for them or because their covers all medical services722. parents do not qualify for inclusion in the compulsory insurance can access Undocumented migrants compulsory insurance if and when the municipality they live in decides it. Undocumented migrants are not covered by compulsory health insurance. They are only In practice, municipalities grant healthcare entitled to free urgent treatment723. insurance under this provision only to children who hold at least a temporary In some cases, enumerated in article 73 of permit of residence in Slovenia. the Foreigners Act of 23th June 2011724, undocumented migrants can get a status of Termination of pregnancy tolerance or a permit to stay on the territory. Article 75 of the same act states that The right to abortion in Slovenia is provided foreigners with tolerated status have the in the Article 55 of the Constitution of the right to urgent medical assistance. Republic of Slovenia and regulated by the Health Measures in Exercising Freedom of In practice, undocumented migrants and Choice in Childbearing Act of 1977 persons with tolerated status turn to Health (ZZUUP)726. centres for persons without compulsory health insurance, to pro bono clinics or to Abortion is carried out at the request of the NGOs. woman, with a referral from a personal physician until the 10th week of the Undocumented pregnant women pregnancy, after this time limit, it is Undocumented pregnant women only have possible only if the risk of the procedure to the right to urgent medical assistance. the life and health of the pregnant women and for her future motherhood is lower than Women who are not compulsory insured in the danger threatening a pregnant woman or Slovenia must pay for delivery from their a child due to the continuation of the own funds as the delivery is considered pregnancy. foreseen and thus not as an urgent medical procedure. However, the termination of

721 Article 84 of the International Protection Act Op. http://www.uradni-list.si/1/objava.jsp?sop=2011- cit. note 718 01-2360 722 Ibid. 725 Op. cit. note 697 723 Op. cit. note 700 726 Freedom Of Choice In Childbearing Act – 1977 724The Foreigners Act – 2011 http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA KO408

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Termination of pregnancy is reimbursed up Bilateral agreements to 80% of the amount by the compulsory Slovenia concluded international insurance727. agreements with a number of countries. Uninsured women have to pay for the Agreements with countries of the former termination of their pregnancy. The price Yugoslavia in particular contain bilateral for abortion varies greatly depending on the measures in the field of health. These health service providers. agreements facilitate access to health for insured persons issued from countries EU citizens Slovenia has an agreement with, and their family members731. Since the 2004 European Directive 2004/38/EC728, after three months of Thanks to the bilateral agreements with residence in Slovenia, EU citizens with Bosnia and Herzegovina and Macedonia, insufficient resources and no health insured persons from one contractor state coverage are considered as undocumented with permanent residence in another migrants. They have the same access to contractor state are provided access to healthcare as undocumented third-country health treatment of the holder in place of nationals and are thus only entitled to urgent residence by legislation, valid for this medical assistance. holder and to the burden of competent holder from the first state732. EU citizens without insurance but with a minimum income can access the Agreements with Serbia and Montenegro compulsory health insurance if they fall into permit access to medical treatment in one of the categories listed in article 15 of conformity with legislation of the second the Law on Health Care and Health state and to the burden of competent holders Insurance729. from the first contractor state to certain categories of posted workers regardless of EU citizens insured in their country of their permanent or temporary residence733. origin can access healthcare services in Slovenia with their European Health Unaccompanied minors Insurance Card (EHIC), if they can cover the potential costs. Unaccompanied minors asking for asylum are entitled to healthcare under the same The EHIC covers its holder for the conditions as nationals of the Republic of treatment of medical conditions, emergency Slovenia. care services and maternity care, providing the reason of the visit in Slovenia is not to Unaccompanied minors who do not apply give birth. It does not cover planned for asylum are considered as undocumented treatment730. migrants and are thus only entitled to urgent medical assistance.

727 Article 23 of the Law on Health Care and Health 731http://ec.europa.eu/dgs/home-affairs/what-we- Insurance op. cit. note 689 do/networks/european_migration_network/reports/ 728 Op. cit. note 189 docs/emn-studies/illegally- 729 Op. cit note 689 resident/24.slovenia_national_report_social_securit 730http://www.zzzs.si/zzzs/internet/zzzseng.nsf/o/41 y_en_version.pdf A664904BA3992AC1256E890048C1AB 732 Art. 12/3 in both agreements 733 Art. 12/3 in both agreements

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Protection of seriously ill foreign treatment of infectious diseases are defined nationals in Contagious Diseases Act. According to Article 73 of the Foreigners As stated in the article 23 of Law on Health Act734, a foreigner who was ordered to leave Care and Health Insurance739 prevention, Slovenia can get a permission to stay if a detection and treatment of HIV infection doctor advises against immediate removal and contagious diseases for which it is from the country because of the foreigner's required by the law to implement measures state of health. to prevent their spread, are provided and fully covered by compulsory health The expulsion of undocumented migrants insurance. can be suspended as long as their (or a family member’s) state of health would Contagious diseases for which it is required make it “inadvisable” for them to travel. to take measures are determined in Article 8 of the Contagious Diseases Act740. Potentially ill foreigners can be refused temporary residence in Slovenia when they Article 22 of the Contagious Diseases Act come from areas where contagious diseases lists the diseases against which vaccination epidemics as listed in the international is compulsory and covered by the health rules of the World Health compulsory insurance. Thus, vaccination is Organization, or from areas where compulsory for hepatitis B, diphtheria, contagious diseases are present that might tetanus, pertussis, poliomyelitis, measles, endanger human health and for which mumps, rubella and other infectious according to the law regulating contagious diseases741. diseases (Contagious Diseases Act ), special measures have to be taken 735. This also Uninsured people can get anonymous and applies to EU citizens, who can also be free of charge testing and counselling for denied admission in Slovenia736. VIH and Hepatitis C at an Infectious Diseases and Febrile Conditions Clinic, but Article 199 §3 of the Foreigners Act737 no treatment is guaranteed. states that EU citizens can apply for a residency permit in Slovenia for “family Health centres for uninsured reunification and other reasons”. Seriously persons ill EU citizens can thus apply for residency under this provision, although positive Three Health centres for persons without outcomes are unlikely. compulsory health insurance exist in Slovenia. Prevention and treatment of These pro-bono clinics, located in infectious diseases Ljubljana, Maribor and Koper are the result According to the Contagious Diseases Act of programs established by different of 2006, everyone has the right to protection organizations as Caritas or Slovene against infectious diseases and nosocomial Philanthropy starting 2002. infections and the duty to protect their Health centres provide medical assistance health and the health of others against these and services by physicians at the primary diseases738. Prevention, testing and

734 Foreigners Act Op. cit. note 724 http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZA 735 Foreigners Act Op. cit. note 724 – Article 55 KO4833. – Article 4 736 Foreigners Act Op. cit. note 724 – Article 118 739 Op. cit. note 689 737 Foreigners Act Op. cit. note 724 740 Op. cit. note 738 738 Contagious Diseases Act of 7th March 2006 741 Op. cit. note 738

 Page 124 SLOVENIA 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. The Ljubljana centre also provides healthcare to “erased people”. Erased persons are persons from other former republics of the former Yugoslavia who were at the time of declaration of independence living in Slovenia but did not apply for or did not obtain Slovene nationality. They were therefore left without legal Slovene documents.

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have established their residence in the SPAIN country, are entitled to the protection of 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 The Spanish Constitution of 1978 cohesion and quality of the National Health recognises in Article 43 the “right to health System747. protection”742. It also claims that “it is incumbent upon the public authorities to As part of its austerity measures, the organise and watch over public health by Spanish parliament adopted Royal Decree- means of preventive measures and the Law 16/2012 on 20 April 2012 “on urgent necessary benefits and services. The law measures to ensure sustainability of the shall establish the rights and duties of all in national health system and to improve the this respect”743. quality and safety of its services”, which came into force on 1 September 2012.

Organisation and funding of Spanish 748 healthcare system Article 1 of Royal Decree-Law 16/2012 (which came into force on 1 September The Spanish healthcare system is based on 2012) modifies Article 3 of Law 16/2003749 solidarity. It aims to redistribute income and Article 12 of Organic Law 4/2000750. 744 amongst Spanish citizens . Indeed, all According to the new provisions, only citizens contribute according to their individuals in the following situations have incomes and receive healthcare services the right to be covered by the National according to their health needs. Health System (Article 3, Section 2 and 4 of Law 16/2003751): The National Health System comprises the public healthcare administration of both the  workers, retired people and Central Government Administration and beneficiaries of social security the autonomous communities (AC), services (e.g. unemployment working in coordination to cover all the benefits); healthcare duties and benefits for which the  people who have “exhausted” their 745 public authorities are legally responsible . right to unemployment benefits and do not benefit from any other Accessing Spain healthcare system after allowances; 2012 Royal-Decree  spouses, dependent ex-spouses, General Health Law No. 14/1986 of 25 descendants or dependants under 26 April 1986746 states that “every Spanish years old (or older in the case of citizen, as well as foreign nationals who people with disabilities categorised as

742Constitution of Spain of 1978, 747Law 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 743 Ibid. 748 Royal Decree-Law of 20 April 2012 744 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 749 Op. cit. note 747 2010/Main.pdf 750Organic Law of 11 January 2000, 745 Ibid. http://www.boe.es/buscar/act.php?id=BOE-A- 746Law of 25 April 1986 2000-544 http://www.boe.es/buscar/doc.php?id=BOE-A- 751 Op. cit. note 747 1986-10499

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equal to or over 65%) of an insured social workers, midwives and person. physiotherapists. Since primary healthcare services are located within the community, 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 754 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 755 registered with the local municipality, the social security system (others are not 756 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 community752. Specialist care is provided in specialist Since the Royal Decree-Law 1192/2012 care centres and hospitals in the form of regulating insured and beneficiary status for outpatient and inpatient care. Patients who the purposes of healthcare in Spain charged receive specialist care and treatment are to public funds through the National Health expected to be referred back to their System753, the requirements must be met primary healthcare doctor who, based on which are imposed by law to be “insured” the patient’s full medical history, including or a “beneficiary” – a condition that must be the medical notes issued by the specialist, officially recognised by the National assumes responsibility for any necessary Institute of Social Security (INSS). Then, follow-up treatment and care. with the required documents issued by the INSS, individuals may apply for the IHC at Reform ending universal access to care any health centre. Before April 2012, the Law 16/2003757 considered as holders of “the right to health All IHC holders can benefit from all protection and healthcare”: healthcare levels, primary and specialist care.  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  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,

752 Health For Undocumented Migrants and Asylum 754 Op. cit. note 748; seekers (HUMA) Network, Accès aux soins des http://www.boe.es/diario_boe/txt.php?id=BOE-A- personnes sans autorisation de séjour et des 2012-5403; http://www.ocu.org/salud/derechos- demandeurs d’asile dans 10 pays de l’UE – paciente/noticias/reforma-sanitaria-copago Législation et Pratique, 2009, 755 There are more than 15 000 medicines covered, http://www.aedh.eu/plugins/fckeditor/userfiles/file/ http://www.msssi.gob.es/profesionales/nomenclator Asile%20et%20immigration/Legislation_et_pratiqu .do e_rapport_HUMA_FR.pdf 756 List of medicines which have been excluded in 753 Royal Decree of 3 August 2012 2012, http://www.seg- http://www.msssi.gob.es/profesionales/farmacia/pdf social.es/Internet_1/Normativa/169476 /BOEA201210952.pdf 757 Op. cit. note 747

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 nationals of non-EU countries [who Article 3 of Law 16/2003 mentioned above) have rights derived from different can only access healthcare services if they international treaties]. pay for it themselves or if they are eligible for a “special provision”. Furthermore, the In this respect, Spain was the only country services included in this special provision with real access to care for all people (which, in reality, is the same as private residing in the country whatever their insurance) are limited to the “basic package financial resources or legal status. of services” of the National Health System, meaning that expenses such as non-urgent With this Royal-Decree, access to care is medical transportation, drugs or external considerably reduced. This reform radically prosthesis (e.g. a wheelchair) are not changed Spanish health coverage, leaving included in the package. However, millions of undocumented migrants without emergency transportation is included in the health insurance, among whom EU “basic package” (Article 8bis of Law nationals staying more than three months 16/2003). without sufficient resources and without health coverage. This measure abandoned The change in the law motivated six large sections of the population unable to autonomous communities to appeal to the afford private health insurance758. Constitutional Court, alleging a breach of universality as a principle. The appeals These provisions mean that the IHC can were also submitted on the grounds of now only be obtained on the grounds of procedural issues (e.g. the Government had working status (indeed, except for not justified the “extraordinary and urgent dependants, only ex-workers who have necessity” required to use legal terms of the worked long enough can benefit from social Royal Decree), as well as on the grounds of security benefits). The “residence” criterion a breach of regional competences, since the is no longer sufficient to be eligible for the management of healthcare is an issue of National Health System. regional domain, whereas this Decree has a However, according to Royal Decree national scope. These processes are still 1192/2012, Spanish citizens, EU-EEA- pending a verdict. Swiss citizens and third-country nationals The European Committee of Social Rights who hold a Spanish residence permit but stated in November 2014 that “the who do not belong to one of the categories economic crisis cannot serve as a pretext mentioned above can be considered as for a restriction or denial of access to “insured” if their annual income does not healthcare that affects the very substance of exceed €100,000 and if they do not have 759 the right of access to healthcare”, meaning health coverage . In this case, they have to that states have the obligation to provide register with their municipality in order to assistance to people regardless of their obtain their IHC, under the same conditions residency status760. as before the reform. Finally, patients who cannot claim “insured” status (as a consequence of

758 Europe Public Health Alliance (EPHA), EPHA 760 European social charter, European Committee of Press Release: Spain on brink of failing its most Social Rights Conclusions XX-2 (ESPAGNE) vulnerable via new health law - A law bringing to an Articles 3, 11, 12, 13 and 14 of the 1961 Charter, end decades-long free and universal health care November 2014, does not benefit anybody, Brussels, 2012, http://www.coe.int/t/dghl/monitoring/socialcharter/ http://www.epha.org/a/5161 Conclusions/State/SpainXX2_en.pdf 759 Op. cit. note 748

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Consequences of the 2012 health reform treatment, to sign a commitment to pay by in Spain the emergency care services. They receive a bill after being treated and have to apply for Royal Decree 16/2012761, adopted on 20 it to be annulled766. April 2012, establishes in Spain a health system close to that of insurance and In 2015, the Spanish government repeatedly therefore far from the idea of a system of announced a change in the law, allowing all universal access to healthcare762. It undocumented migrants to access constitutes a structural transformation. healthcare again, without going completely back to the former health cards system. Yet, The consequences of the reform may have this change was never realized. real, dangerous effects on the population’s health, “specifically concerning infectious diseases like tuberculosis or HIV-infected Access to healthcare for migrants patients, in addition to endangering access to care for those mentally ill, addicted to Asylum seekers and refugees drugs or vulnerable groups like homeless Access to healthcare services for asylum individuals”763. seekers is regulated at national level by Articles 16, §2 and 18§1 of Law 12/2009767 According to data from the Federation of as well as by the fourth additional provision Associations Defending Public Health of Royal Decree 1192/2012768. They are (Federacion de Asociaciones en Defensa de entitled to access healthcare on equal la Sanidad Publica – FADSP), the grounds to Spanish nationals and authorised healthcare co-payment established by the residents with regard to coverage and Royal Decree has had a severe impact on conditions. individuals with low incomes, such as pensioners: 17% of pensioners have been Refugees and those benefitting from unable to continue a course of treatment due subsidiary protection have access to health to high and increasing costs. services either as recipients of social security benefits (workers, unemployed In addition, with regard to the Royal people or those dependent on an insured Decree-Law, the European Committee of person) or as non-nationals holding a Social Rights has considered repressive the residence permit769. As asylum seekers, fact that undocumented migrants are they have the same access to healthcare as 764 excluded from the healthcare system . It nationals and authorised residents. also added that times of economic crisis cannot be an excuse to deny or restricting In order to obtain their IHC, they have to the right to health to this vulnerable register with their municipality under the group765. same conditions as prior to the 2012 reform. MdM ES reports situations in which people are asked, before they receive any kind of

761Royal Decree 16/2012 763 H. Legido-Quigley, “Erosion of universal health https://www.boe.es/diario_boe/txt.php?id=BOE-A- coverage in Spain”, The Lancet, 2013. 2012-5403 764 Op. cit. note 762 762 Doctors of the World – Médecins du Monde ES, 765 Op. cit. note 762 Dos años de reforma sanitaria : más vidas humanas 766 Op. cit. note 762 en riesgo, April 2014, 767Law of 30 October 2009, http://www.medicosdelmundo.org/index.php/mod.d http://www.boe.es/buscar/act.php?id=BOE-A- ocumentos/mem.descargar/fichero.documentos_Im 2009-17242 pacto-Reforma-Sanitaria-Medicos-del- 768 Op. cit. note 753 Mundo_3ec0bdf9%232E%23pdf 769 Op. cit. note 767

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Pregnant asylum seekers and refugees Undocumented migrants who are excluded Pregnant women seeking asylum or with from the healthcare scheme may obtain refugee status have the same access to personal health insurance after at least one healthcare as nationals and authorised year of residence in Spain, if they can afford residents. They have access to antenatal, to pay for it. This health insurance costs €60 delivery and postnatal care and pregnancy per month for those below 65 years of age termination. and €157 per month for those aged 65 and above. Children of asylum seekers and refugees Those who cannot afford to pay for personal Pursuing to Article 1 of Royal Decree-Law health insurance and/or who have been 16/2012, children of asylum seekers and living in Spain for less than one year do not refugees have the same access to healthcare have access to healthcare. as the children of nationals and authorised residents. This includes vaccinations. It must be stressed that each autonomous community in Spain can implement specific Undocumented migrants regulations regarding access to and costs of 773 Before the adoption of Royal Decree healthcare for undocumented migrants . 16/2012770, access to the Spanish National This situation creates administrative Health System was universal and free of confusion and therefore inequality in access charge for everyone, including to healthcare depending on where someone undocumented migrants, on production of lives774. the IHC. This could be obtained by Indeed, several Spanish communities registering with the local municipality and restored healthcare coverage for with proof of identity and residence in most undocumented migrants, with different regions. conditions to obtain it, as Castilla-La Article 1 of Royal Decree-Law 16/2012771 Mancha, Andalusia Valencia, Navarra, introduced a new Article 3ter to Law Aragon Balearic Islands, Cantabria, 16/2003772 which modified the old system. Valencia, Catalonia, the Canary Islands, Murcia and the Basque Country. The According to Article 3ter, undocumented Community of Madrid did not issue any law migrants are completely excluded from the but sent an internal statement to Health healthcare scheme except that: Centers with the order to provide medical attention to everyone.  children under 18 years old and pregnant women have access to Undocumented pregnant women primary and secondary care Article 1 of Royal Decree-Law 16/2012 (including antenatal, delivery and introducing the new Article 3ter states that postnatal care and vaccination); foreign nationals who are neither registered  emergency care should remain freely nor authorised to reside in Spain will be accessible.

770 Op. cit. note 748 http://apps.elsevier.es/watermark/ctl_servlet?_f=10 771 Op. cit. note 748 &pident_articulo=0&pident_usuario=0&pcontactid 772 Op. cit. note 747 =&pident_revista=28&ty=0&accion=L&origen=zo 773 J. A. Pérez-Molina and F. Pulidob,“¿Cómo está nadelectura&web=www.elsevier.es&lan=es&ficher afectando la aplicación del nuevo marco legal o=S0213-005X(14)00362-0.pdf&eop=1&early=si sanitario a la asistencia de los inmigrantes infectados 774 Ibid. por el VIH en situación irregular en Espana?”, Elsevier, 2014

 Page 130 SPAIN covered for antenatal, delivery and healthcare under the same conditions as postnatal care. Spanish citizens”778. However, since the 2012 reform, a number This provision states clearly that all minors of Non-Governmental Organisations and in Spain, whatever their administrative media have reported how pregnant women status, will be granted access to all often struggle to gain access to medical healthcare services, under the same care775. Indeed, women are asked to present conditions as Spanish minors i.e. free of their IHC and if they do not have one, they charge. are instructed to go to the emergency department776. Article 2 of Royal Decree-Law 16/2012 provides for the basic health services Furthermore, because of the poor level of package which includes prevention information around the reform, neither services779. Indeed, the Spanish National health providers nor undocumented Health System provides childhood pregnant women know that the 2012 Royal immunisations, regardless of their Decree allows them to have access to nationality or status in the country. healthcare during their pregnancy. To receive healthcare under the same The consequences are serious, as many conditions as Spanish citizens, children of women only seek medical attention when undocumented migrants must have an their situation is already concerning and Individual Healthcare Card. The IHC can complicated. It has been reported that only be obtained under three conditions: the women who have been through a person has to be registered at the local complicated birth have sometimes had to municipality (Padron), provide a valid pay a bill of up to €3,300777. identity document and provide proof of residence in the autonomous community. The legal framework implemented by the Royal Decree is theoretically relatively In practice, children in need of healthcare adequate for emergency situations and go to health providers and are asked for pregnancies. Nonetheless, in practice, their IHC. If they do not have one because women struggle with the administration to of administrative barriers and get the necessary IHC and therefore do not misinformation, they can be denied care and have proper access to the medical care they sent to the emergency department in the need. meantime780.

Children of undocumented migrants EU citizens Article 1 of Royal Decree-Law 16/2012 Directive 2004/38 was transposed into the modifying Article 3ter of Law 16/2003 Spanish legal framework by Royal Decree provides that “in any case, foreign nationals 240/2007 of 16 February, on the entry, free who are less than 18 years old receive movement and residence in Spain of

775 Op. cit. note 762 777 G. Sanchez, “Embarazadas, menores y urgencias: 776Yosi - sanidad universal, Un año de exclusión los incumplimientos de una ley sanitaria sanitaria, un año de desobediencia, Campaña de discriminatoria”, eldiario.es, 31 August 2013, desobediencia al Real Decreto-Ley 16/2012, 2013, http://www.eldiario.es/desalambre/inmigracion- http://yosisanidaduniversal.net/media/blogs/materia sanidad_sin_papeles- les/DossierAniversarioRDL.pdf ; I. Benitez, “Health un_ano_sin_sanidad_universal_0_170433089.html Care for Immigrants Crumbling in Spain”, Inter 778 Op. cit. note 748 Press Service News Agency, 24 May 2013, 779 Op. cit. note 748 http://www.ipsnews.net/2013/05/health-care-for- 780 Op. cit. note 32 immigrants-crumbling-in-spain/

 Page 131 SPAIN citizens of the Member States of the who are “victims of any form of abuse [...] European Union and other states parties to or victims of an armed conflict, receive all the agreement on the European Economic healthcare as well as necessary specialized Area. and psychological care”.

Royal Decree 240/2007 states that EU Protection of seriously ill foreign citizens have the right to reside only if they have health coverage and have sufficient nationals resources for themselves and their family Article 126 of Royal Decree 557/2011 of 20 members not to become a burden on the April 2011784 states that a temporary social assistance system of the host Member residence permit on humanitarian grounds State. This provision excludes destitute EU can be granted to a foreign national under citizens. the following conditions: Thus, EU nationals who have lost their  the individual must prove that they authorisation to reside in Spain must apply are affected by a serious disease for a “special provision”, under the same which occurred after785 their arrival in conditions as undocumented migrants, to be the country (this condition does not readmitted into the Spanish National Health apply to foreign children) and which System. needs specialist medical care;  there is no access to the treatment in In addition, in 2013, the European the country of origin; Commission raised concerns about the issue  the absence of treatment or its 781 of the EHIC . European patients who hold interruption could lead to a serious an EHIC have been denied access to public risk for the patient’s health or life. healthcare782. In order to demonstrate the need, a clinical Unaccompanied minors report must be issued by the competent Article 3ter, subparagraph 4 of Law medical authority. Article 130 of Royal 16/2003783 (introduced by Article 1 of Decree 557/2011 specifies that this Royal Decree-Law 16/2012) provides that residence permit for humanitarian reasons “in any case, foreign nationals who are less is valid for a one-year period and is than 18 years old receive healthcare under renewable as long as the conditions are met. the same conditions as Spanish citizens”. This provision states clearly that all minors, Treatment of infectious diseases including unaccompanied minors, have The entry into force of Royal Decree access to healthcare services, under the 16/2012786 in Spain in September 2012 led same conditions as Spanish minors, i.e. free to the exclusion of a large number of of charge. undocumented migrants from the National Regarding more specifically Healthcare System. unaccompanied minors “seeking asylum”, Concerning the specific medical attention to Article 47 of Law 12/2009 points out that be given to undocumented migrants minors seeking international protection and

781European Commission, European Health 783Op. cit. note 747 Insurance Card: Commission expresses concerns 784Royal Decree 557/2011 about refusals by Spanish public hospitals to https://www.boe.es/buscar/act.php?id=BOE-A- recognise EHIC, Brussels, 30 May 2013, 2011-7703 http://europa.eu/rapid/press-release_IP-13- 785 It is very difficult for doctors to attest if the 474_en.htm?locale=en disease occurred after or before arrival. 782 Ibid. 786 Op. cit. note 748

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(excluding those under 18 years old and healthcare, as well as pharmaceutical pregnant women), some autonomous benefits, for those migrants excluded by the communities in Spain have developed Royal Decree Law, provided they fulfil different laws or regulations in order to certain administrative conditions. allow undocumented migrants access to healthcare787 and, in particular, regarding We have no information on any other the treatment of infectious diseases788. alternatives to access to treatment for those people – as people with infectious diseases In six autonomous communities (Aragon, – who cannot benefit from the programme. Canary Islands, Catalonia, Extremadura, Galicia and Valencia) there are health Navarre programmes with specific rules for each In March 2013, the Regional Parliament them that enable access to primary and passed a law (Ley Foral 8/2013793), granting specialised healthcare for undocumented any resident in Navarra – including migrants with no resources (therefore it undocumented ones – the right to free and provides healthcare to those people with public healthcare. This law has been infectious diseases who have no IHC and no appealed before the Constitutional Court. resources); but this does not guarantee free The court issued a decision on 8 April 2014 789 access to medicines. The undocumented and decided to maintain the suspension of migrants must be registered in the locality the provisions of the 8/2013 Law and be able to prove their lack of recognizing the right to free healthcare for 790 resources and satisfy other administrative undocumented migrants and to lift the requirements. suspension of the other provisions of the law794. There is a very small percentage of undocumented migrants who can access To support this decision, it was argued that, these programmes. For those people with a given the vulnerability of the Spanish disease which is considered to be a risk to economy, a region cannot decide to fully public health but who do not have an IHC cover healthcare for undocumented and cannot access this programme, the only migrants. alternative is to access healthcare but to be invoiced afterwards for the service (unless Castile and Leon – La Rioja they have previously subscribed to a special With regards to Castile and Leon, and La agreement791). Rioja, no specific regulation was There is no information on specific implemented. Nonetheless, it is important provisions to guarantee access to treatment to stress that in Castile and Leon, for those with infectious diseases. undocumented migrants who were not able to renew their IHC after the 2012 Royal Cantabria Decree-Law can still access healthcare if they had one before the reform795. Both Cantabria’s Programme of Social Protection and Public Health792 enables access to primary and specialised

787 Op. cit. note 762 793Ley Foral 8/2013 788 Op. cit. note 773 http://www.navarra.es/home_es/Actualidad/BON/B 789 Op. cit. note 762 oletines/2013/43/Anuncio-5/ 790 Op. cit. note 773 794http://hj.tribunalconstitucional.es/en/Resolucion/ 791 Op. cit. note 762 Show/23930 792http://www.saludcantabria.es/index.php?page=pr 795 Op. cit. note 773 ograma-cantabro-de-proteccion-social-de-la-salud- publica

 Page 133 SPAIN regions provide healthcare in cases of risk riesgo para la Salud Pública) approved by for national public health. all the autonomous communities798. This document does not specifically refer to Andalusia – Asturias – Basque Country undocumented migrants, but broadly to any These regions have contested the Royal person who does not benefit from the 799 Decree-Law, rejecting its enforcement and National Health System . developing mechanisms to ensure access to It establishes the right of everyone to medical assistance for undocumented healthcare (including preventive care, migrants on the same terms as the rest of the follow-up and monitoring) as soon as it is population. The way this is implemented suspected that an individual has an varies from one case to another (e.g. the infectious disease subject to General Directorate of Health Services in epidemiological control and/or elimination Andalusia provides a temporary health card at a national or international level and also (“Documento de reconocimiento temporal for people with an infectious disease that del derecho a la Asistencia Sanitaria”)) requires long-term and chronic medical and, in the case of, the Basque Country treatment800. requires a minimum period of registration in the local census. Various diseases are included such as HIV, hepatitis B and C, tuberculosis801. However, in general terms, they all provide access to both primary and specialised Nevertheless, even though specific healthcare, as well to pharmaceutical regulation may be established in Spain, services, thus covering care for people with 37% of doctors who are specialists in infectious diseases. infectious diseases said in 2015 that they have real difficulties “always or most of the Madrid – Balearic Islands – Catalonia time” in treating HIV positive patients who In Madrid, the Balearic Islands and are undocumented migrants802. Catalonia, the medical treatment of infectious diseases such as HIV or tuberculosis is considered as a matter of public health included in the scope of the 2012 Royal Decree796. Nonetheless, in Madrid, this treatment is charged to the patient. In the Balearic Islands, the treatment is free and the same is true for Catalonia797. In February of 2014, the Ministry of Health, Social Services and Equality published a document entitled ‘Healthcare interventions in situations of public health risk’ (Intervención Sanitaria en situaciones de

796 Op. cit. note 773 799 Ibid. 797 Op. cit. note 773 800 Op. cit. note 798 798 Ministerio de Sanidad, servicios sociales e 801 Op. cit. note 798 igualdad, Intervencion sanitaria en situaciones de 802 http://www.chueca.com/articulo/la-exclusion-de- riesgo para la salud publica, 18 de diciembre de migrantes-de-la-sanidad-impide-el-control-de-las- 2013, enfermedades-infecciosas http://www.msssi.gob.es/profesionales/saludPublica /docs/IntervencionSanitariaRiesgoSP.pdf

 Page 134 SWEDEN

basis of need, but also emphasises a vision 806 SWEDEN of “equal health for all” . The Swedish healthcare system is organised National Health System into three levels: national, regional and local. Predominantly, these three entities Constitutional basis handle the funding of the National Health System (NHS). Government funding comes The Constitution of the Kingdom of mainly from proportional income taxes Sweden of 1974, in its Article 2 (Chapter 1), levied by county councils/regions and states that “Public power shall be exercised municipalities, and some national and with respect for the equal worth of all and indirect tax revenues807. the liberty and dignity of the private person. The personal, economic and cultural Only a minor proportion of the population welfare of the private person shall be has private health insurance, which is fundamental aims of public activity. In usually paid by their employer. This private particular, it shall be incumbent upon the insurance is usually purchased to gain a public institutions to secure the right to faster access to specialist care. health, employment, housing and education, and to promote social care and With primary responsibility for the delivery social security […]”803. of quality healthcare at the level of the county councils/regions and municipalities, In addition, Article 7 (Chapter 8) the Swedish governance model is a mix of establishes that “with authority in law, the a decentralised organisation of healthcare Government may, without hindrance of the services and centralised setting of provisions of Article 3 or 5, adopt, by means standards, supervision and compilation of of a statutory instrument, provisions performance information on county/region- relating to matters other than taxes, based services808. provided such provisions relate to any of the following matters: the protection of life, At the national level, the Ministry of Health health, or personal safety […]”804. and Social Affairs is responsible for overall healthcare policy. It establishes principles Organisation and funding of Swedish and guidelines for care and sets the political healthcare system agenda for health and medical care. The Swedish healthcare system has an At the regional and local levels, the Health explicit public commitment to ensure the and Medical Services Act809 specifies that health of all citizens. The Health and the responsibility for ensuring that everyone 805 Medical Services Act 1982 not only living in Sweden has access to good incorporated equal access to services on the healthcare lies with the county councils and municipalities. The Act is designed to give county councils and municipalities

803 Constitution of the Kingdom of Sweden of 1974, 2012,14(5):1–159. http://www.parliament.am/library/sahmanadrutyun http://www.hspm.org/countries/sweden25022013/li ner/Sweden.pdf vinghit.aspx?Section=2.1%20Overview%20of%20t 804 Ibid. he%20health%20system&Type=Section 805The Health and Medical Service Act of 1982, 808 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 806http://www.euro.who.int/en/countries/sweden http://www.nsdm.no/filarkiv/File/Eksterne_rapport 807 Anell A, Glenngård AH, Merkur S. Sweden: er/OECD_rapport_Sverige_1_.pdf Health system review. Health Systems in Transition, 809 Op. cit. note 805

 Page 135 SWEDEN considerable freedom with regard to the Pharmaceutical Benefits814, the State organisation of their health services. subsidises the cost of certain medicines. For instance, since 1 January 2016, certain The 21 county councils are responsible for prescribed drugs in the reimbursement the funding and provision of healthcare system are free for children under 18 years services, especially primary care, through a old815. national network of about 1,200 public and private primary health centres covering the The Dental and Pharmaceutical Benefits country810, in accordance with Section 3 of Agency (TLV) is a central government the Health and Medical Service act811. agency which determines whether a pharmaceutical product (or dental care The 290 municipalities are responsible for procedure) is to be subsidised by the long-term care for older people living at State816. home, in care homes or nursing homes, and for those with disabilities or long-term There is a high-cost threshold that reduces mental health problems. patient costs for prescription medicines. The high-cost applies for a 12 month period, Accessing Sweden healthcare system starting after purchases amounting to €118 The 1982 Health and Medical Services (SEK 1,100) for prescription medicines Act812 states in its Article 2 that the health during a 12-month period. system must cover all nationals and authorised residents. In practice, the patient pays the full price for their medicines up to around €118 The publicly financed health system covers: (SEK1,100). Following this, a discount system comes into effect:  public health and preventive services;  primary care, inpatient and outpatient  between €118 (SEK 1,101) and €225 specialised care; (SEK 2,100), the patient pays 50% of  emergency care, inpatient and out- the cost of the medicine; patient prescription drugs;  between €225 (SEK 2,101) and €418  mental healthcare; (SEK 3,900), the patient pays 25% of  rehabilitation services; the cost of the medicine;  disability support services;  between €418 (SEK 3,901) and €580  patient transport support services; (SEK 5,400), the patient pays 10% of  home care and long-term care, the cost of the medicine817. including nursing home care;  dental care for children and young Patients who bought medicines on people; and with limited subsidies, 813 prescription for €236 (SEK 2,200) within a adult dental care . 12-month period do not pay any more for their medicines during the remaining time The Swedish health system does not in that period818. provide medicines free of charge to individuals with health coverage. However, according to the 2002 Law on

810 Op. cit. note 216 Lagar/Lagar/Svenskforfattningssamling/Lag- 811 Op. cit. note 805 2002160-om-lakemedelsfo_sfs-2002-160/ 812 Op. cit. note 805 815 Law on Pharmaceutical benefits, Article 19 813 Op. cit. note 216 816 http://www.tlv.se/In-English/in-english/ 814Law on Pharmaceutical Benefits of 2002 817 http://www.tlv.se/In-English/medicines-new/the- http://www.riksdagen.se/sv/Dokument- swedish-high-cost-threshold/how-it-works/ 818 Ibid.

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The medicine fee system is different for Asylum seekers aged under 18 are entitled asylum seekers and undocumented to a broader scope of care (see below). migrants. According to Regulation on care fees for foreign nationals staying in Sweden The Swedish Migration Agency provides without the necessary permits819, asylum asylum seekers with a personal card (LMA seekers and undocumented migrants only card) which is valid for a determined period have to pay a fee of a maximum of €5.20 (three, four or six months). This card must 822 (50 SEK) per prescribed drug. This applies be presented when seeking care . to medicines subsidised by the State. Upon their arrival in Sweden, asylum seekers are required to undergo a free health The fees for GP consultations are set by examination823. each county and vary between 100 and 300 SEK (€10-32) across the country. Annual For any visit to a health centre or hospital, out-of-pocket payments for healthcare adult asylum seekers pay around €5 (SEK visits are capped nationally at 1,100 SEK 50) for the visit or examination and around (€118) per individual. After reaching this €5 (SEK 50) when buying most prescribed threshold, the patient can obtain a card that medicines from the pharmacy824. For gives him/her access to free healthcare until medical transport they pay a maximum of 12 months have passed since the first €4.30825. According to the Reception of visit820. Asylum Seekers Act (LMA)826, asylum seekers who are registered are entitled to Access to healthcare for migrants assistance, including a daily allowance.

Asylum seekers and refugees If they have paid more than €43 for doctor’s appointments, medical transport and Pursuant to the 2008 Law on Health and prescription drugs within six months, Medical Services for Asylum Seekers and 821 asylum seekers can apply for a special Others , asylum seekers are entitled to allowance. The Swedish Migration Agency subsidised: can compensate costs over €43827, paying  health and dental care that “cannot be the county administrative board for medical postponed” examinations and care received by asylum  contraceptive advice seekers828. The county administrative board  pregnancy termination  maternity care

819 Regulation on care fees for foreign nationals 823 Swedish Migration Agency staying in Sweden without the necessary permits of http://www.migrationsverket.se/English/Private- 2013 individuals/Protection-and-asylum-in- http://www.riksdagen.se/sv/Dokument- Sweden/While-you-are-waiting-for-a- Lagar/Lagar/Svenskforfattningssamling/Forordning decision/Health-care.html -2013412-om-varda_sfs-2013-412/) 824 Ibid. 820 Op. cit. note 216 825 Ibid. 821 Law on Health and Medical Services for Asylum 826 Reception of Asylum Seekers Act (1994:137) of Seekers and Others of 2008, 1994, http://www.riksdagen.se/sv/Dokument- http://www.riksdagen.se/sv/Dokument- Lagar/Lagar/Svenskforfattningssamling/Lag- Lagar/Lagar/Svenskforfattningssamling/Lag- 2008344-om-halso--och-s_sfs-2008-344/ 1994137-om-mottagande-a_sfs-1994-137/ 822 C. Björngren Cuadra, “Policies on Health Care 827 Op. cit. note 823 for Undocumented Migrants in EU27, 828 G. Abraha, “A Handbook for Asylum Country Report, Sweden”, Healthcare in Seekers in Sweden”, Asylum Reception in Focus - A NOWHERELAND improving services for series from NTN-asylum & integration No. 5, 2007 undocumented migrants in the EU, 2010, http://www.temaasyl.se/Documents/NTG- http://files.nowhereland.info/692.pdf

 Page 137 SWEDEN can also, following an application, receive Finally, in accordance with the Dublin III payment for special costly care829. Regulation834, during the 3 first month of the asylum application, a country other than Asylum seekers and refugees also have Sweden can request the responsibility to access to emergency care but this is not free consider it. If this occurs, the asylum seeker of charge. According to the 2013 will lose his status and the rights attached to Regulation on foreign nationals and care it and will be transferred to the country 830 fees , the caregiver should decide the cost declared competent to examine his for such care that is not mentioned in the application. regulation, and emergency care is not mentioned. Therefore each county decides Pregnant asylum seekers and refugees what the cost for emergency care should be. Pregnant women seeking asylum have the In Stockholm, and many other counties, the right to receive health care under the cost is around €43. conditions detailed above. Starting 1 June 2016, amendments made to They are entitled free of charge to the Reception of Asylum Seekers’ Act 831 contraceptive advice, abortion, preventive (LMA) entered into effect. Asylum maternal care, maternity care and seekers who received a decision of refusal childbirth835. of entry; whose expulsion can no longer be appealed or whose period of voluntary Children of asylum seekers and refugees return has ended and who are not living with Children of asylum seekers have the same children under 18 years old will no longer access to medical and dental care as be entitled to stay in Swedish Migration children of nationals and authorised Agency accommodations and will have to residents, even after their application for return their LMA card opening them access to healthcare832. Children will not be asylum has been rejected. affected by this reform, even if their period Their access to healthcare is free of of voluntary return has expired, until they charge836. turn 18 years old. This is regulated by the Law on Health and A new temporary law is expected to enter Medical Services for Asylum Seekers and into force on 20 July 2016. This law will Others (2008:344)837. considerably limit asylum seeker’s possibilities to obtain a permanent Undocumented migrants residence permit and to be eligible for Undocumented migrants have the same family reunification. It will be valid for access to healthcare as asylum seekers and three years and will apply for asylum refugees since the implementation of the seekers who arrived after 24 November Health and Medical Care for Certain 2015833. Foreigners Residing in Sweden without

dokument/A+Handbook+for+Asylum+Seekers+in+ 833http://www.migrationsverket.se/English/Private- Sweden.pdf individuals/Protection-and-asylum-in- 829 Ibid. Sweden/Frequently-asked-questions-.html 830 Op. cit. note 819 834 Op. cit. note 154 831 Op. cit. note 826 835http://www.1177.se/Other- 832http://www.migrationsverket.se/Om- languages/Engelska/Regler-och-rattigheter/Vard-i- Migrationsverket/Nya-lagar-2016/Vanliga-fragor- Sverige-om-man-ar-asylsokande-gomd-eller- och-svar.html papperslos/#section-4 836 Ibid. 837 Op. cit. note 821

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Proper Documentation Act (2013:407)838 in In its interim report on the implementation July 2013. of the 2013:407 law released on 15 April 2015, the Swedish Agency for Public Prior to the implementation of the 2013:407 management also underlined the difficulty Act in 2013, undocumented migrants had to to interpret the formulation “care that pay full fees for receiving healthcare, even cannot be postponed”843. in cases of emergency. Since the Medical Care for Certain Consequently, undocumented migrants are Foreigners Residing in Sweden without entitled to: Proper Documentation Act came into force on July 2013, MdM SE team has observed  medical examination and medicine difficult implementation. Medical staff lack covered by the Pharmaceutical information and understanding about the Benefit839 new law and often apply the former system.  health care “that cannot be deferred Indeed, some public hospitals claim  pregnancy termination payment for health costs. For instance, GP  contraceptive counselling consultations are sometimes billed €45,  sexual and reproductive care whereas they should cost around €5.  maternity care840. What is more, it is extremely easy for the In addition, the new reform stipulates that billing departments to know the legal status county councils should be able to offer of a patient, based on their personal identity undocumented migrants the same level of 841 number. Undocumented migrants do not care that is available to residents . have any number or have a temporary one Similarly to asylum seekers, at least in assigned by health clinics which does not theory, undocumented migrants can also match the official pattern. apply for the compensation of costs over €43. As a result, many undocumented migrants are still denied access to healthcare they are The 2013:407 Act was nonetheless entitled to. criticized for its imprecision. In February 2014, the National Board of Health and Undocumented pregnant women Welfare (Socialstyrelsen) came to the The July 2013 Health and Medical Care for conclusion that the terms “that cannot be Certain Foreigners Residing in Sweden postponed” are “not compatible with ethical without Proper Documentation Act principles of the medical profession, not (2013:407)844 states in its article 7 that medically applicable in health and medical undocumented pregnant women are entitled care and risk jeopardizing patient to free maternal healthcare, abortion and safety”842. contraception.

838 Medical Care for Certain Foreigners Residing in 841http://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- 842http://www.socialstyrelsen.se/Lists/Artikelkatalo 2013407-om-halso--och-sjukvard-till-vissa_sfs- g/Attachments/19381/2014-2-28.pdf 2013-407 843 Swedish Agency for Public management, Care 839 Op. cit. note 814 for undocumented A follow-up of the Care to people 840 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 844 Op. cit. note 840

 Page 139 SWEDEN

However, in practice, women often get undocumented EU citizens) and children denied maternity care. They are regularly who are nationals848. rejected at the stage of signing in for care because they lack an official personal EU citizens identity number. The EU directive 2004/38849 transposed into the Foreigners Act (2005:716)850, Regarding termination of pregnancy, the Chapter 3a, states that, after three months, care related to the procedure is free of EU citizens can lose their right to reside in charge. However, women have to pay Sweden if they do not have health coverage around €5 for the termination itself, which and sufficient resources. They are then is the same amount as a regular medical considered as undocumented migrants. consultation. The July 2013 Health and Medical Care for Children of undocumented migrants Certain Foreigners Residing in Sweden Pursuant to Article 6 of the 2013 Health and without Proper Documentation Act is not Medical Care for Certain Foreigners clear on whether destitute EU citizens who Residing in Sweden without Proper have lost the right to reside are currently Documentation Act845, children of able to access healthcare on the same basis undocumented migrants have the same as undocumented migrants from a third- rights to medical and dental care as the country. children of Swedish nationals. The government bill 2012/13:109851 merely Moreover, healthcare in Sweden is free for stipulates that this is possible “only in a few children under 18 years old846. cases”, without further precision. All children in Sweden have access to free However, in December 2014, the National vaccination, according to a national Board of Health and Welfare publicly vaccination programme. The vaccination announced that EU citizens should be programme includes ten vaccines: polio, considered as undocumented (and have the diphtheria, rubella, tetanus, pertussis, same access to care as asylum seekers and hepatitis B, pneumococci, measles, mumps, third-country nationals). It then made a new and HPV (girls only)847. statement in April 2015 and reiterated the fact that EU citizens who stay longer than The vaccination of young children is three months may in certain cases have performed at the health centre, while access to healthcare on the basis of the 2013 children at primary school are vaccinated by law852. the school healthcare facilities. There is no distinction made regarding vaccination In practice, they remain in the former between children of undocumented system and have to pay full fees for migrants (including children of

845 Op. cit. note 840 forfattningssamling/utlanningslag-2005716_sfs- 846 Op. cit. Note 835 2005-716 847http://www.1177.se/Fakta-och- 851 Government Bill on healthcare for people staying rad/Behandlingar/Vaccinationer-av-barn/ in Sweden without permission of 2013, p. 41 848http://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/ 849 Op. cit. note 189 852http://www.socialstyrelsen.se/vardochomsorgfora 850Foreigners Act of 2005 sylsokandemedflera/halso- http://www.riksdagen.se/sv/dokument- ochsjukvardochtandvard/vilkenvardskaerbjudas lagar/dokument/svensk-

 Page 140 SWEDEN receiving healthcare in most hospitals and national on grounds of exceptionally health centres. distressing circumstances. The evaluation of eligibility for such a residence permit Unaccompanied minors includes the health state. Since the 2013:407 law came into force, However, a new bill entered into force on asylum seekers, refugees and 20 July 2016 for a period of three years and undocumented migrants have the same abolished this category of protection857. access to healthcare. Thus, unaccompanied minors, regardless of their status, should This new legislation removes the possibility have access to healthcare, in particular to to obtain a residency permit for seriously ill vaccination. individuals. The county councils are in charge of providing the same quality of health Prevention and treatment of service, including healthcare, for children infectious diseases under the age of 18 seeking asylum as for other children who are citizens or residents Infectious diseases are covered by the in Sweden. This includes child psychiatric Diseases Act (Smittskyddslagen858) which and dental care853. states that certain testing and treatment are free of charge for residents in Sweden and The National Board of Health and Welfare for those who are covered by EU regulation supervises the municipalities’ reception of 883/2004 on the coordination of social unaccompanied children. security systems859. The County administrative boards Since the 2013 Health and Medical Care for supervise the chief guardians who appoint Certain Foreigners Residing in Sweden guardians for unaccompanied minors without Proper Documentation Act which seeking asylum854. Pursuant to Chapter 19 grants the same access to healthcare for of the 1949 law (1949:381)855, the chief undocumented migrants as asylum seekers guardian is elected by the city council. They and refugees, undocumented migrants also are elected for a four-year period. have access to testing and treatment free of charge. Protection of seriously ill foreign nationals Diseases such as tuberculosis, HIV According to Chapter 5, Section 6 of the and hepatitis are covered by the law. Foreigners Act of 29 September 2005856, a residence permit can be granted to a foreign Pursuant to the Communicable Disease Act of 1998860, physicians are obliged to notify

853 U. Wernesjo, “Conditional Belonging 857http://www.migrationsverket.se/English/About- Listening to Unaccompanied Young Refugees’ the-Migration-Agency/New-laws-in-2016/Limited- Voices”, Digital Comprehensive Summaries of possibilities-of-being-granted-a-residence-permit- Uppsala Dissertations from the Faculty of in-Sweden.html Social Sciences 93. Uppsala, 2014, http://www.diva- 858Diseases Act of 2004, portal.org/smash/get/diva2:689776/FULLTEXT01. http://www.riksdagen.se/sv/Dokument- pdfto Lagar/Ovriga-dokument/Ovrigt-dokument/_sfs- 854 Ibid. 2004-168/ 855 The Children and Parents Code of 1949, 859http://eur- http://www.riksdagen.se/sv/Dokument- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L Lagar/Lagar/Svenskforfattningssamling/Foraldrabal :2004:166:0001:0123:en:PDF k-1949381_sfs-1949-381/#K19 860http://www.riksdagen.se/sv/dokument- 856 Op. cit. note 850 lagar/dokument/svensk-

 Page 141 SWEDEN cases of communicable diseases dangerous to society. The identity and immigration 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 get tested and to receive treatment.

forfattningssamling/smittskyddslag-19881472_sfs- 1988-1472

 Page 142 SWITZERLAND

health insurance. Moreover, the LAMal SWITZERLAND expanded the package of services previously covered by statutory health National Health System insurance and made this “basic package” compulsory across the Swiss Constitutional basis confederation866. The Federal Constitution of the Swiss To facilitate government monitoring of Confederation, adopted on 18 April 1999, health insurance companies, insurers must enshrines the right to health. Article 12 register with the Federal Office of Social establishes that “persons in need and Insurance (FOSI) in order to offer the basic unable to provide for themselves have the health insurance package867. Moreover, the right to assistance and care, and to the Swiss system being highly decentralised, financial means required for a decent 861 the 26 Swiss cantons are largely responsible standard of living” . Article 41(1)a and b for the provision of healthcare and states that, “the Confederation and the insurance companies (around 90 across the Cantons shall, as a complement to personal country) operate primarily on a regional responsibility and private initiative, basis868. endeavour to ensure that: (a) every person has access to social security; (b) every With regard to the funding, there are three person has access to the healthcare that components for publicly financed they require”862. healthcare:

Moreover, Article 117a1, relating to basic  mandatory health coverage; medical care, states that, “within the limits  direct financing by government for of their respective powers, the healthcare providers (tax-financed Confederation and the cantons shall ensure budgets spent by the Confederation, that everyone has access to sufficient and cantons and municipalities; the high quality basic medical care (…)”863. largest portion of this spending is given as cantonal subsidies to In addition, Article 118 enshrines the hospitals providing inpatient acute protection of health, for which “the care); Confederation shall, within the limits of its 864  social insurance contributions from powers, take measures” . health-related coverage of accident insurance, old-age insurance, Organisation and funding of Swiss disability insurance and military healthcare system insurance869. The Swiss Federal Law on Compulsory Health Care (LAMal) entered into force on 1 January 1996865. This law introduced a managed competition scheme across the country, with “universal” coverage in basic

861 Federal Constitution of the Swiss Confederation 866 Civitas, Health care Systems: Switzerland, by of 1999 (last updated 18 May 2014), Claire Daley and James Gubb, updated by Emily http://www.admin.ch/ch/e/rs/1/101.en.pdf Clarke (December 2011) and Elliot Bidgood 862 Ibid. (January 2013), 863 Op. cit. note 861 http://www.civitas.org.uk/nhs/download/switzerlan 864 Ibid. d.pdf 865 Law on Compulsory Healthcare (LAMal) - 1994 867 Ibid. https://www.admin.ch/opc/fr/classified- 868 Op. cit. note 866 compilation/19940073/index.html 869 Op. cit. note 216

 Page 143 SWITZERLAND

Accessing Switzerland healthcare annual franchise, the less the monthly system premium will be. The system is based on the compulsory The most destitute people therefore often health insurance for any person residing in choose this option which creates serious Switzerland for more than three months, as difficulties if they become ill (and can lead foreseen in Article 3 (1) LAMal and in to them giving up seeking care), as they relation to Article 1(1) Health Insurance cannot cover the resulting costs (they are Ordinance (OAMal) of 27 June 1995 not refunded until they reach the amount of (OAMal/RS 832.102870). Article 6 LAMal their franchise). completes these provisions by explaining that the cantons are in charge of making In the event of non-payment of the monthly sure that this obligation is respected and that compulsory health insurance premiums, the “the authority designated by the canton individual receives a summons giving them automatically affiliates any person, who is 30 days to pay the premiums due. If the obliged to take out insurance if that person summons remains unanswered, the insurer has not already done so”. will initiate legal proceedings. After the individual receives an order to pay, they The monthly premiums for health insurance have 30 days to pay the entire sum claimed, are fixed per family member and plus the legal expenses. independently of income, depending on the region and the chosen insurance model. On While the former Article 64a LAMal average, compulsory health insurance (with provided that insurance funds could accident coverage) for an adult over the age suspend their services and/or of 26 costs €393 per month, €362 per month reimbursements if people did not pay, the for young adults (18-25 years old) and €90 new Article 64a LAMal (which came into per month for children under the age of 18. force on 1 January 2012)873 modified this Furthermore, the insured person must pay provision. Insurance funds no longer have an annual “franchise” which, by law, varies the right to suspend healthcare between CHF300 (€277) and CHF2500 reimbursements if an individual fails to pay (€2,310) for adults (CHF0 to CHF600 their premiums. (€554)) for children) and must also contribute up to 10% (proportional share) of In this way, the canton assumes 85% of the the cost of the services provided871. debts claimed by the insurance fund. As soon as the individual pays all or part of This proportional share is capped at their debt to the insurance fund, the fund CHF700 (€647) per adult and CHF350 gives 50% of this amount back to the (€323) per child872. In other words, in canton. Only if legal proceedings turn out to addition to the monthly premium, an adult be impossible or do not result in payment, who has opted for a €277 franchise will pay and after written notification, can the a maximum of €924 (€277 + €647) per year insurer eventually terminate end the health for medical treatment. The higher the insurance (Article 9, OAMal)874.

870Health Insurance Ordinance 832.102 872http://www.guidesocial.ch/fr/fiche/55/%23som_1 https://www.admin.ch/opc/fr/classified- 34251 compilation/19950219/201506010000/832.102.pdf 873http://www.admin.ch/opc/fr/classified- 871https://www.eda.admin.ch/missions/mission-onu- compilation/19940073/index.html#a64a geneve/en/home/manual-regime-privileges-and- 874 Op. cit. note 870 immunities/introduction/manual-insurance/manual- insurance.html

 Page 144 SWITZERLAND

A partial reduction or full exemption from detailed in the Federal Department of the monthly premiums is foreseen in Article Interior (DFI) order of 29 September 1995 65(1) LAMal875 for people “on low regarding compulsory healthcare services incomes”. This is the responsibility of the in the event of illness or disease881. The cantons which is why the granting of following services are notably included: premium reductions differs from one canton to another.  examinations, treatments and care dispensed in the form of outpatient Paragraph 1a of this same article also care at the person’s home, in hospitals indicates that for low and middle-range or in a medical-social centre by incomes, premiums for children and young doctors, chiropractors and individuals adults (18-25-year-old students) are providing services prescribed by a reduced by at least 50%. doctor;  antenatal and postnatal care; Article 115 of the Swiss Constitution,  terminations of pregnancy allowed by completed by the Federal Act of 24 June Article 119 of the Swiss Criminal 1977 on jurisdiction in terms of assistance Code882 (i.e. within the first three 876 for persons in need (‘LAS’/RS 851.1 ) months or because it is necessary to foresees that “people in need are assisted by “reduce or avoid the danger of the canton of their domicile”. This ‘social serious harm to the physical integrity assistance’ organised by the cantons is or state of profound distress of the reserved for people who “cannot take care pregnant woman”); of themselves sufficiently or in time, by  preventive measures (mammography 877 their own means” (Article 2 LAS) . Social for some women at risk, 878 assistance is granted if a person in need gynaecological examinations, cannot be looked after by their family or examinations of new-born and pre- cannot claim other legal services to which school children, basic vaccinations they have a right (principle of for children and elderly people); 879 subsidiarity) .  “rehabilitation” measures carried out or prescribed by a doctor. It includes, notably, prevention measures, personal assistance and material assistance Dental care is not included in this catalogue, depending on the individual’s needs. Thus, except if it is caused by a serious and non- social assistance ensures basic medical care avoidable disease of the masticatory for those concerned, including the coverage system, by another serious disease or its of the compulsory basic health insurance880. consequences or because it is necessary to The healthcare services covered by the treat a serious disease or its consequences compulsory (basic) health insurance are (Article 31 LAMal)883. Unless they indicated in Articles 25 to 31 LAMal and subscribe to additional health insurance

875 Op. cit. note 865 879http://www.fr.ch/sasoc/fr/pub/aide_sociale/buts_ 876 Federal Law on assistance of 1977, aide_sociale.htm http://www.admin.ch/opc/fr/classified- 880 http://csias.ch/ compilation/19770138/index.html#id-1 881 Healthcare Benefits Ordinance of 1995, 877 Ibid. http://www.admin.ch/opc/fr/classified- 878 W. Schmid and D. Maravic, “The new CSIAS compilation/19950275/index.html standards relative to the obligation to provide care 882Swiss Criminal Code of 1937, under the terms of family rights”, The fiduciary http://www.admin.ch/opc/fr/classified- Expert, 2009 compilation/19370083/index.html#a119 http://www.trex.ch/custom/trex/pdfarchiv/TREX_2 883 Op. cit. note 865 009/Edition_4/Articles_specialises/Walter_Schmid __Danie.pdf

 Page 145 SWITZERLAND cover for dental care, patients with basic accessing care goes against the rights of health insurance have to pay for the full cost asylum seekers appealing a decision i.e. of dental care which is very expensive in who are still in the asylum process. Switzerland. A major modification of the Asylum Act Access to healthcare for migrants was put to vote through a referendum on 5 June 2016888. The results of the vote are Asylum seekers and refugees provisory as of July 2016, but the law is expected to be adopted with a large As Switzerland applies a global health majority. This reform may shorten the insurance scheme that is obligatory for all asylum procedure and the delay for appeal people residing in Switzerland for longer of rejected asylum seekers, which would than three months, the scheme also includes toughen the current asylum legislation. asylum seekers and refugees884. However, it also includes the obligation for the authorities to provide free legal Thus, asylum seekers and statutory refugees counselling for all asylum seekers and to have to take out compulsory health take into account the specific needs of insurance as they are “persons domiciled in unaccompanied minors, families with Switzerland within the meaning of Articles 885 children and “particularly vulnerable 23-26 of the Swiss Civil Code” . individuals”. For instance, minor asylum They can make a claim for premium seekers would be entitled to schooling from reductions if they are “on a low income”886. the beginning of their asylum application They can also benefit from social assistance until they are 16, which is the age at which at the level provided by their canton, as schooling is no longer compulsory. foreseen in Articles 80-81 of the Asylum Pregnant asylum seekers and refugees Act (LAsi)887. This social assistance covers basic medical care, including compulsory Under the Swiss health system, pregnant insurance (especially the amount remaining women should have access to antenatal and after premium reductions and franchises). postnatal care. Cantons are obliged to provide accommodation to asylum seekers According to the Asylum Act, asylum and refugees, therefore pregnant women seekers who receive a negative asylum have immediate access to social assistance decision or a rejection of their application and premium reductions and thus they have still benefit from ordinary social assistance. access to antenatal and postnatal care. They also have access to pregnancy termination Since 1 February 2014, social assistance is through social workers who help them with automatically withdrawn from individuals the process. who receive a removal decision with a fixed departure deadline (Article 82(1) LAsi). Children of asylum seekers and refugees Those who receive a removal decision may Children of asylum seekers and children of only have access to emergency care on refugees have the same access to healthcare request (Article 82(2) LAsi). This barrier to

884 V. Bilger and C. Hollomey, “Policies on Health 886https://www.geneve.ch/assurances/maladie/subsi Care for Undocumented Migrants in Switzerland, des-assurance-maladie-2015.asp#a14 Country Report”, Healthcare in NOWHERELAND 887 Asylum Act (LAsi) - 1998 improving services for undocumented migrants in https://www.admin.ch/opc/fr/classified- the EU, 2011, compilation/19995092/index.html http://chm.com/country_report_Switzerland.pdf 888https://www.admin.ch/gov/fr/accueil/documentat 885 Swiss Civil Code of 1907, ion/votations/20160605/modification-de-la-loi-sur- http://www.admin.ch/opc/fr/classified- asile.html compilation/19070042/index.html

 Page 146 SWITZERLAND as their parents. They have health coverage Other cantons accept a sworn statement and which includes vaccination if their parents in this case undocumented migrants can are covered. easily gain access to premium reductions.

Undocumented migrants Therefore, in practice, undocumented migrants try to obtain health coverage, even As already mentioned, any person residing if it is expensive. They spend most of their in Switzerland must take out health wages on private insurance contributions. insurance within three months of residence They opt for the cheapest contributions of or birth, including undocumented migrants. around €300. This choice involves having 891 Only authorised residents (including the highest franchise , around €2,300 per refugees, beneficiaries of subsidiary year. It means that they have to cover the protection and asylum seekers) benefit from first €2,300 prior to being covered by health social assistance. Others can only exercise insurance. In addition, they must contribute their right to “emergency assistance” under up to 10% (proportional share) of the cost the terms of Article 12 of the Swiss of outpatient services. Constitution889. Undocumented migrants also have a right to Although Article 65(1) LAMal states that “emergency assistance” under the terms of 892 destitute undocumented migrants can Article 12 of the Swiss Constitution which foresees that “anyone in distress who benefit from the same premium reductions as destitute nationals, this is not possible in cannot take care of himself has the right to all cantons and very difficult to obtain. aid and assistance and to an existence Indeed, most cantons ask for proof of compliant with human dignity”. These aid income tax in order to grant access to and assistance provisions are free of charge. premium reductions. The assistance includes, as a minimum, Thus, because they do not work legally, “accommodation in simple housing (often they do not pay taxes, so they cannot have collective), the supply of food products and access to premium reductions. The canton hygiene items, emergency medical and of Neuchâtel asks for proof of domicile dental care, as well as other vital services”. which is in practice very difficult to obtain Significant differences between cantons for someone who is hosted by friends or exist regarding the access procedures and families and cannot therefore be registered services covered by this emergency with the residents’ registration office (le assistance system and some cantons are 893 service de contrôle des habitants). quite restrictive . In any case, this Undocumented migrants are not likely to assistance must be specifically requested by take the risk of being thrown out of their the potential beneficiaries and does not homes to get this proof. Indeed, according always include affiliation to a health to Article 116 of the law on foreign insurance fund. nationals890, individuals who host In practice, undocumented migrants face undocumented migrants can be punished by many difficulties in respecting the a fine or imprisonment of up to one year. obligation to take out health insurance because of lack of financial means, lack of knowledge of the system and fear of being

889 Op. cit. note 861 891 The franchise or deductible is the amount which 890Federal Law on Foreigners 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 892 Op. cit. note 861 893 http://www.guidesocial.ch/fr/fiche/46/

 Page 147 SWITZERLAND reported. Insurers must maintain principle, they may have access to premium confidentiality with regard to third reductions which cover the whole premium. parties894 but in the event of the non- However, in practice, access to premium payment of premiums, the insurer initiates a 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 Mostly 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 have to pay for maternal care; this means want to register them for school. they do not pay the franchise nor the 10% proportional share895. 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, a lot of 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 Termination of pregnancy cannot pay for health services leave the According to Article 119 of the Criminal hospital without having paid and without a Code896, termination of pregnancy is bill for reimbursement. possible up to 12 weeks following the Children of undocumented migrants beginning of a women’s last period. After 12 weeks, termination is only possible if a Children of undocumented migrants have the same access as their parents. In

894Federal Law on the general section of social 895http://www.bag.admin.ch/themen/krankenversich insurance of 2000, Article 33, 84, 92,c erung/04114/04285/index.html?lang=fr http://www.admin.ch/opc/fr/classified- 896 Op. cit. note 882 compilation/20002163/index.html#a33

 Page 148 SWITZERLAND doctor considers that there is physical unaccompanied minors903. Indeed, the danger for the pregnant woman. United Nations experts are concerned that certain cantons may assign representatives Terminations of pregnancy are included in who do not have any experience or training the basic health insurance services and are and therefore are not able to guarantee the therefore entirely reimbursed for insured best interests of the minor. Accordingly, the 897 persons (Article 30 LAMal) . United Nations recommends that representatives be properly trained and that Unaccompanied minors unaccompanied minors be excluded from In certain cantons, unaccompanied minors the accelerated asylum procedure904. should be taken into establishments which assist them and ensure their protection. In Switzerland, apart from the difference in Those who seek asylum have the same the cost of compulsory insurance and the access to healthcare as children of asylum obligation to take into account the best seekers. interests of the child by the authorities, no specific legal provision exists regarding According to state regulations, the right to access to healthcare for unaccompanied seek asylum is guaranteed for all minors compared with children who unaccompanied minors in Switzerland898. accompany their family. This right is strictly personal899, therefore whether unaccompanied minors reach the Protection of seriously ill foreign age of discernment, they can make an nationals application for asylum personally, or they will have to be represented by a People in situations considered of “an “trustworthy person”900. These persons are extreme seriousness” or hardship can assigned by the canton authorities901. obtain a humanitarian residence permit (B permit). Indeed, people who reside in It is important to stress that even if an Switzerland without a residence permit can unaccompanied minor reaches the age of request the application of Article 30(1)b of discernment and is able to fill out an asylum the Federal Act on Foreign Nationals application on their own, they will have to (LETr) of 16 December 2005905. The be assisted by a “trustworthy person” definition of “extreme seriousness” representative during the procedure902. depends on the examination of several criteria referred to in Article 31 of the Therefore, the issue of this representative is Ordinance of 24 October 2007 related to the crucial regarding asylum requests by admission, residency and exercise of a unaccompanied minors. On 4 February lucrative activity906. 2015, the United Nations Committee on the Rights of the Child addressed a number of A serious health condition for which no recommendations to Switzerland, one of treatment in the country of origin exists is which relates to the rights of not sufficient in itself as a criterion, as the

897 Op. cit. note 865 903http://www.asile.ch/vivre- 898https://www.osar.ch/droit-dasile/procedure- ensemble/2015/02/07/odae-romand-lonu-sinquiete- dasile/mineurs.html des-conditions-daccueil-des-enfants-migrants-en- 899http://www.sem.admin.ch/dam/data/sem/asyl/ver suisse/ fahren/hb/c/hb-c10-f.pdf 904 Ibid. 900 Ibid. 905 Op. cit. note 890 901 Op. cit. note 899 906 Ordinance on admission, residence and gainful 902http://www.admin.ch/opc/fr/classified- employment of 2007, compilation/19995092/index.html#a82a http://www.admin.ch/opc/fr/classified- compilation/20070993/index.html#a31

 Page 149 SWITZERLAND person’s level of integration into Swiss For undocumented migrants who are not society, respect for the law, family situation covered by the basic compulsory health (notably the presence of children), financial insurance, treatments for HIV and hepatitis situation and duration of stay in Switzerland C are unaffordable. For instance, triple (preferably more than five years) are therapy treatment costs around €1,500 per systematically examined by the Federal month. This price does not include analysis. Administrative Court. In practice, obtaining Some NGOs decide to pay the monthly this permit remains exceptional. There is no contributions to the basic health insurance possibility to appeal the Court’s decision. in a limited way to people with low incomes, especially undocumented Provisional admission (F permit) can also migrants, in order that they can get health be granted to people for whom the coverage and thus free treatment for a execution of an expulsion order is not period of one year. However, this scheme is possible, legal or reasonably enforceable not enough to cover all undocumented (Article 83 al. 1 LETr). Article 83(4) of the migrants. LETr foresees that “the execution of the decision cannot be reasonably requested if the deportation or expulsion of the foreign national to his or her country of origin or provenance concretely puts that person in danger, for example in the event of war, civil war, generalised violence or medical necessity”. 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”.

Treatment of infectious diseases Costs linked to HIV screening and HIV treatment are covered by the basic compulsory health insurance907. People need a medical prescription from a doctor. In term of access to screening and treatment of infectious diseases, there are many differences depending on the canton.

In Neuchâtel, people may have access to anonymous screening but they have to pay between €27 (CHF30) and €55 (CHF60) for HIV screening (€27 (CHF30) for those under 20 years old) and between €27 (CHF 30) and €37 (CHF40) for hepatitis C screening908.

907 Order of the Interior Federal Department (DFI) 908 http://www.info-sida.ch/ of 1995, Article 12d

 Page 150 TURKEY

Organisation and funding of Turkish TURKEY healthcare system Health services are financed through the National Health System health insurance scheme, the GHIS, which covers the majority of the population, and Constitutional basis services are provided by both public and Article 56 of the Constitution of Turkey of private sector facilities914. The SSI is 1982, amended in 2010, states, “that it is the funded through payments by employers and duty of the state (…) to ensure that everyone employees and government contributions in leads their lives in conditions of physical cases of budget deficit915. and mental health and to secure The Ministry of Health is the main actor in cooperation in terms of human and material 916 resources through the economy and planning and supervising health services . increased productivity, the state shall The private sector has gained power over regulate the central planning and recent years, particularly after arrangements 909 functioning of the health services” . paved the way for private provision of Article 60 explains that “everyone has the services to the SSI. Turkey finances 910 right to social security” . healthcare services from multiple sources917. Social health insurance Towards universal health coverage contributions take the lead, followed by Since 2003, Turkey has been implementing government sources, out-of-pocket its Health Transformation Programme payments and other private sources918. (HTP) with the goal of realising universal health coverage through the General Health The SSI finances the cost of healthcare Insurance System (GHIS)911. services provided by health service providers through the premiums collected In 2006, the parliament ratified the Law on from universal insurance holders. Social Insurance and Universal Health Insurance (Law No. 5510 – GHI Law)912. The universal health insurance premium is With this law, the three separate schemes 12.5% of income. Of this premium, 5% is (Bağ-Kur, SSK and GERF913) were brought the insurance holder’s share deducted from under a single system. the gross salary and 7.5% is the employer’s share919. At present, both social security and health insurance (General Security Service) Accessing Turkey healthcare system procedures are carried out by the Social In theory, as introduced by the GHI Law, Security Institution (SSI). the GHIS provides individuals residing in

909 Constitution of the Republic of Turkey of 1982 913 M. Tatar et al., “Turkey: Health system review”, http://www.hri.org/docs/turkey/part_ii_3.html#artic Health Systems in Transition, Vol. 13 No. 6, 2011, le_56 http://www.euro.who.int/__data/assets/pdf_file/000 910 Ibid. 6/158883/e96441.pdf 911R. Hunter, “TURKEY’S HEALTH CARE 914 Ibid. REFORM: THE 2023 CHALLENGE”, TURKISH 915 Op. cit. note 913 POLICY Quarterly, Vol. 12 No. 2, 2013, 916 Op. cit. note 913 http://turkishpolicy.com/pdf/vol_12-no_2- 917 Op. cit. note 913 hunter.pdf 918 Op. cit. note 913 912 Social Insurance and Universal Health Insurance 919http://www.invest.gov.tr/en- Law of 2006, us/investmentguide/investorsguide/employeesandso http://turkishlaborlaw.com/images/turkish-social- cialsecurity/pages/turkishsocialsecuritysystem.aspx security-law/social-security-law-5510.pdf

 Page 151 TURKEY the country with comprehensive, fair and scheme must have paid at least 60 days of equitable access to healthcare services, contributions924. regardless of their economic situation. In addition, there has been an extension of The system is available to foreign residents the coverage period for former members of paying social security contributions. With the SSK and Bağ-Kur, as well as for active the Social Insurance and General Health civil servants, when they cancel their Insurance, everybody residing in the membership for any reason925. Previously, country legally is included in the health they were covered for up to 10 days after system. In addition to this, the new system cancellation; now both they and their extended free health coverage for children dependants can benefit from the GHIS for below 18920. With the new system, all 90 days, provided they have paid 90 days of children get free health services even if their contributions in the last year926. parents have outstanding debts on their insurance payments. In accordance with Article 60 of the GHI Law927, refugees do not pay insurance Article 60 of the GHI Law921 (as amended premiums, they are not deemed to be by Article 38 of 2008/5754 Law and Article insurance holders, and the same applies to 123 of 2013/6458) states that the following citizens with very low incomes. The latter population groups are covered by the GHIS: are defined as citizens whose domestic income per capita is less than one third of  former members of the SSK, Bağ-Kur the minimum wage, determined using the and GERF, active civil servants and testing methods and data as stipulated by Green Card holders, as well as their the SSI, and taking into account their dependants; expenses, movable and immovable property  specific groups receiving a monthly and their rights arising from these. The pension from the government (such as minimum wage is around €400 as of 1 war veterans); January 2016928, so destitute citizens have  people recognised as stateless who less than approximately €133 per month. have applied for or been granted protection; The SSI provides preventive care free of  people in receipt of unemployment charge for every citizen, even those without 922 benefit, etc. . health coverage. Regarding medicines, a co-payment of €1 is required for The GHI Law also determined the rules of prescriptions. If more than three medicines entitlement. Accordingly, in order to benefit are included in the prescription, this co- from the GHIS, an individual must have payment increases by €0.30 for each paid a minimum of 30 days of general medicine929. health insurance contributions in the last 923 year . Self-employed people (formerly Co-payments for outpatient care have been covered by the Bağ-Kur) and those who introduced for all those covered by the SSI were not previously covered by any other who present at hospitals without a referral

920O. Karadeniz, “Extension of Health Services 924 Op. cit. note 913 Coverage for Needy in Turkey: From Social 925 Op. cit. note 913 Assistance to General Health Insurance”, Journal of 926 Op. cit. note 913 Social Security, 2012, 927 Op. cit. note 912 http://www.acarindex.com/dosyalar/makale/acarind 928http://www.fedee.com/pay-job- ex-1423911988.pdf evaluation/minimum-wage-rates/ 921 Op. cit. note 912 929http://www.asylumineurope.org/sites/default/files 922 Op. cit. note 913 /report-download/aida_tr_update.i.pdf 923 Op. cit. note 913

 Page 152 TURKEY from a primary care physician (GP); charge and people have to pay out of pocket patients pay €5 to public hospitals. for any services. However, inpatient services are fully covered930.Visits to primary care facilities In practice, in Istanbul, foreign nationals do not require a co-payment931. can have access to inpatient services in public hospitals by payment of the fee for Green Card scheme people without health insurance (“tourist In 1992, the government introduced a Green fee”). A medical consultation with a GP costs around €40. Card scheme for destitute households with incomes below the national minimum and However, in accordance with Circular No. for families on social assistance, financed 2010/16 issued by the Prime Minister, 932 from general budget revenues . The Green emergency healthcare services for all Card scheme provided a special card giving individuals are supposed to be free without free access to outpatient and inpatient care, any distinction between private or public covering inpatient medication expenses, but healthcare institutions933. excluding the cost of outpatient drugs. Green Card holders, being poor people, did Asylum seekers and refugees not directly contribute to the healthcare Turkey was one of the original signatories system, but received benefits free of charge 934 (with the exception of drug co-payments) to the 1951 Refugee Convention . when they needed care. However, it adopted the Convention with a “geographical limitation”935. Since 2012, the Green Card system has become part of the GHIS, joining the SSI. This means that only refugees coming from Destitute citizens in Turkey can access countries that are members of the Council Turkey’s healthcare system, according to of Europe are offered the prospect of long- the same criteria as under the previous term integration in Turkey. For those Green Card scheme. coming from outside this zone, Turkey offers limited protection in the form of temporary asylum936. Access to healthcare for migrants The legal framework for asylum in Turkey Authorised residents was shaped by the Law on Foreigners and 937 It is not compulsory for foreign nationals to International Protection (LFIP) , which join the SSI health scheme. Those wishing was passed by the Turkish parliament in to join may do so after one year of residence April 2013 and came into force since April in Turkey with a residence permit. During 2014. The LFIP is a milestone in Turkish this year, health services are not free of asylum law, as it overhauled the entire Turkish asylum system and incorporated

930 Op. cit. note 913 935Asylum Information Database, Country report : 931 Op. cit. note 913 Turkey, December 2015, p. 15 932 R. Atun, et al., “Universal health coverage in http://www.asylumineurope.org/sites/default/files/r Turkey: enhancement of equity”, the Lancet, Vol eport-download/aida_tr_update.i.pdf 382, No 9886, 2013. 936NOAS, Seeking asylum in Turkey, a critical 933http://www.admdlaw.com/health-care-services- review of Turkey’s asylum laws and practices, 2016 for-foreigners-in-turkey/#.VOCdrku6w7s http://www.asylumineurope.org/sites/default/files/r 934 Convention relating to the Status of Refugees - esources/noas-rapport-tyrkia-april-2016_0.pdf 1951 937Law 6458 on Foreigners and international http://www.ohchr.org/EN/ProfessionalInterest/Page Protection (LFIP) – 2013 s/StatusOfRefugees.aspx http://www.refworld.org/cgi- bin/texis/vtx/rwmain?docid=5167fbb20

 Page 153 TURKEY into Turkish law some procedural Thus, they can access for free the same safeguards resembling EU migration law. healthcare services as Turkish nationals covered by the national insurance scheme. It is important to bear in mind that in Turkish regulations the term “refugee” is Applicants and holders of the international defined differently from the established protection status are supposed to prove their definition based on international law. lack of resources. It is reported that in Indeed, only those people applying for practice, such means determination is not international protection “as a result of always carried out and applicants are events occurring in European countries” usually extended free healthcare can obtain a refugee status in line with the coverage944. Refugee Convention938. Another prerequisite to obtain this coverage Individuals coming from a “non-European is to have a Foreigners Identification country of origin” may only apply for a Number, assigned by Provincial DGMM conditional refugee status939 or for Directorates. Yet, the delays to obtain one subsidiary protection940, pursuant to the are very long, leaving applicants for LFIP. Both of these types of international international protection without health protection are temporary. coverage945. Refugees from Syria (i.e. Syrian nationals Furthermore, applicants processed under and stateless Palestinians originating from the accelerated procedure cannot have Syria) benefit from a specific “temporary access to this benefit since they are not protection” regime. This separate regime issued the International Protection acquired a legal basis in 2014 with the Applicant Identification Document, thus, Temporary Protection Regulation (TPR)941, they are only entitled to “urgent and basic based on Article 91 of the LFIP. The healthcare services”946. temporary protection status is not specific to any nationality and could be applied to These conditions do not apply for any mass-arrival situation, upon decision of “Temporary protection” beneficiaries. the Turkish Council of Ministers942. Pursuant to article 27 of the Temporary Protection Regulation947, all registered Pursuant to article 89-3a of the Law on “temporary protection” beneficiaries, Foreigners and International Protection943, whether residing in the camps or outside the “international protection applicants and camps, are covered under Turkey’s general status holders who do not have any health health insurance scheme. As such, they insurance coverage and do not have the have the right to access free of charge health financial means to pay for healthcare care services provided by public health care services” are to be covered by the General service providers. Health Insurance scheme under Turkey’s public social security scheme. Individuals eligible for “temporary protection” who have not yet completed their registration only have access to

938Law on Foreigners and International Protection, 942 NOAS, Seeking asylum in Turkey, 2016, op. cit. op. cit. note 937, article 61 note 936, p. 15 939 Law on Foreigners and International Protection, 943 Op. cit. note 937 op. cit. note 937, article 62 944 Asylum Information Database, Country report : 940 Law on Foreigners and International Protection, Turkey, December 2015, op. cit. note 935, p. 87 op. cit. note 937, article 63 945 Asylum Information Database, Country report : 941Temporary Protection Regulation of 22 October Turkey, December 2015, op .cit. note 935, p. 73 2013 946 Ibid. http://www.refworld.org/docid/56572fd74.html 947 Op. cit. note 941

 Page 154 TURKEY emergency medical services and health 20% co-payment from “temporary services pertaining to communicable protection” beneficiaries950. diseases as delivered by primary health care institutions. “Temporary protection” beneficiaries’ access to secondary and tertiary health care Once they are covered by the general health services is conditional upon whether the insurance scheme, international protection health issue in question falls within the applicants and holders and temporary scope of the Ministry of Health’s Health protection beneficiaries are entitled to Implementation Directive (SUT). For spontaneously access initial diagnosis, treatment of health issues which do not fall treatment and rehabilitation services at within the scope of the SUT or for treatment primary healthcare institutions. They can expenses related to health issues covered by also access screening and immunization for the SUT, which however exceed the communicable diseases, specialized maximum financial compensation amounts services for infants, children and teenagers allowed by the SUT, beneficiaries may be as well as maternal and reproductive health required to make an additional payment. services948. Free health care coverage for registered “temporary protection” beneficiaries also As a general rule, they are entitled to access extends to mental health services provided healthcare services only in the province by public health care institutions. they are registered in. So far, the transition to the new asylum Victims of psychological, physical or scheme has been characterized by a lag on sexual violence are entitled to appropriate implementation of the new legal framework care, according to article 67-2 of the LFIP. and lack of transparency, which results in inconsistencies affecting access to health As for medication cost, beneficiaries of care. For instance, although the LFIP “international protection” and of required that a separate regulation be issued “temporary protection” have to contribute to determine specific aspects of its 20% of the total amount of the prescribed implementation, two unpublished (ie, not medication costs949. In addition, publicly available) circulars have instead beneficiaries are expected to pay TL3 been shaping the practice until the adoption (€0.89) per medication item up to three of the implementing regulation on 17 items, and TL1 (€0.29) for each item in March 2016951, over a year and a half after more than three items were prescribed. the adoption of the LFIP. In practice, inconsistency in the practices of pharmacies is reported. Some pharmacies, Undocumented migrants including in Istanbul, are unwilling to Undocumented migrants do not have access provide medication for “temporary to healthcare through the GHIS. Since the protection” beneficiaries because of circular of 2 November 2011 came into ongoing delays in reimbursements. In other force on 1 January 2012, the government provinces, pharmacies do not require the has enforced a “tourist fee” of around €50 for an emergency consultation in public hospitals952. Moreover, the amount charged

948Asylum Information Database, Country report : 951 Regulation on the Implementation of the Law on Turkey, December 2015, op. cit. note 935, p. 88 Foreigners and International Protection – 2016 949 Asylum Information Database, Country report : http://www.resmigazete.gov.tr/eskiler/2016/03/201 Turkey, December 2015, op. cit. note 935, p. 131 60317-11.htm 950 Ibid. 952 M. Blézat and J. Burtin, « Soigner le mal par le rien », Plein droit, juin 2012, No 93.

 Page 155 TURKEY for specialised care for a person considered migrants to pay their medical bill for the to be a tourist is four times that for non- emergency care they receive. tourists. In practice, these prices are applicable to undocumented migrants who In contrast, other public hospitals accept require care. undocumented migrants for treatment. For a medical consultation with a GP, they have In addition, the healthcare system reform in to pay around €40 (“tourist fee”), eight Turkey which has been implemented since times more than individuals with health 2003 made the primary healthcare centre, coverage. In practice, undocumented where undocumented migrants could access migrants have to rely on organisations such healthcare with a GP, accessible only to as ASEM to act as mediators in their access individuals with health coverage. to public hospitals. Undocumented migrants have to go to expensive private clinics to vaccinate their In Istanbul, undocumented pregnant women children. often do not have access to antenatal and postnatal care. ASEM generally sends Public hospitals are obliged to treat pregnant women to the Saint-Georges everyone in case of emergency. However, Hospital, with which they have an the team in Istanbul has observed that agreement, so they can have access to undocumented migrants may often be antenatal care (this comprises two refused treatment or reported to the police consultations: one at around three months by medical and administrative providers and one at eight months). when they present at the emergency departments of public hospitals953. Otherwise, pregnant women have to pay out-of-pocket hospital fees. For example, a According to the Doctors of the World – delivery by caesarean section is around Médecins de Monde (MdM) partner in €3,500 and a vaginal delivery is around Turkey, ASEM, in 2014, organisations €1,000. Sometimes, hospitals are willing to supporting migrants condemned the arrests accept payment by instalments or by the police of several foreign men who sometimes they call the police who take the were hospitalised and then taken and woman and her new-born into custody. interned in Kumkapi detention centre. This phenomenon has been observed since at Pregnant women in Istanbul do not have least 2010954. In most cases, these arrests access to pregnancy termination. ASEM break the continuity of care and they also sends them to a private clinic in Kumkapi demonstrate the cooperation which exists which charges between €160 and €180 until between the police and hospital staff955. four weeks of pregnancy. The price increases the closer the termination is to the According to the law contradicted by the end of the legal period of ten weeks956. 2011 circular, everyone should have free access to emergency services regardless of The minor children of undocumented their legal status. However, the law does not migrants also have no access to healthcare. define the term “emergency care”, so the They may have access to vaccination at a interpretation of the law is left to hospital primary healthcare centre but these centres staff. Thus, public hospitals often ask usually require the child to be registered with the authorities. Each vaccine costs

953 Op. cit. note 952 to the 20th week if the pregnancy threatens the 954 Op. cit. note 952 woman's mental and/or physical health, or if the 955 Op. cit. note 952 conception occurred through rape. 956Abortion in Turkey is legal until the 10th week after the conception, although that can be extended

 Page 156 TURKEY around €18, added to the medical refugee status determination under consultation which costs around €40. UNHCR’s mandate’, which states that age assessment should be resolved in the favour Unaccompanied minors of the child962. Prior to the Law on Foreigners and The 2013 law provides that the best interest International Protection adopted in 2013, of children shall be respected. However, it there were no specific legal provisions with also states that families and unaccompanied regard to the detention of minors. The 2006 children can be detained for removal Ministry of Interior “implementation purposes but that they should be given directive” (Security Circular No.57), separate accommodation arrangements at defining asylum procedures under Turkey’s removal centres and that children should 1994 Asylum Regulation, stated that have access to education (Article 59 (1-ç- temporary asylum applications for d))963. unaccompanied minors were to be fast- tracked so that minors could be transferred The law states that unaccompanied minors to shelters of the State Child Protection who apply for international protection are Agency957. not to be detained964. Those aged under 16 will be placed in government-run shelters, However, the circular recommends the use while those over 16 can be placed in of medical tests for determining the age of “reception and accommodation centres minors if they do not have documentary provided that favourable conditions are proof of their age, or if the police have ensured” (Article 66)965. doubts about the age stated in such documentation958. It specifically allows Thus, there is a difference in treatment minors to be held in reception centres and between different groups of unaccompanied until the results of these tests are issued they minors. Those who apply for international are held with adults and people who may protection and who are waiting for the result have been accused of and convicted of of their application or who have been crimes959. accepted as a refugee should receive protection from the state and should have Moreover, there is no margin of error access to healthcare. Those who receive a applied to the result of the tests, as decision and have their application refused recommended by international standards960. The 1997 UNHCR ‘Guidelines on policies and procedures in dealing with unaccompanied children seeking asylum’ state that, when scientific procedures are used to determine the age of the child, margins of error should be applied961. In addition, a policy was adopted by the 2005 UNHCR ‘Procedural standards for

957 Global Detention Project, Immigration Detention http://www.hyd.org.tr/staticfiles/files/rasp_detentio in Turkey, April 2014, n_report.pdf http://www.globaldetentionproject.org/fileadmin/do 959 Ibid. cs/Turkey_report.pdf 960 Op. cit. note 958 958Refugee Advocacy & Support Program, 961 Op. cit. note 958 Unwelcome Guests: The Detention of Refugees in 962 Op. cit. note 958 Turkey’s “Foreigners’ Guesthouses, November 963 Op. cit. note 957 2007, 964 Op. cit. note 957 965 Op. cit. note 957

 Page 157 TURKEY may be detained966 and are sometimes Prevention and treatment of 967 detained in a manner akin to kidnapping . infectious diseases Protection of seriously ill foreign The treatment of infectious diseases is nationals covered by the guarantee package of the GHIS. In medical examinations, STIs such Law no. 6458 on Foreigners and as HIV/AIDS and syphilis as well as International Protection of April 2013968 tuberculosis are checked free of charge. makes provision for a humanitarian Tuberculosis is also checked during residence permit in specific cases. employment recruitment processes and for other people who may have contact with Article 46 of the law states that, “under the infected people (also free). following cases, upon approval of the Ministry, a humanitarian residence permit Turkish citizens, authorised residents, with a maximum duration of one year at a asylum seekers and refugees with health time may be granted and renewed by the coverage have free access to screening and governorates without seeking the treatment for hepatitis B and tuberculosis. conditions for other types of residence permits: a) where the best interest of the Preventive health services for refugees are child is of concern; b) where, delivered by local public and family health notwithstanding a removal decision or ban centres. Immunisation of preschool children on entering Turkey, foreign nationals is the leading focus among these services. cannot be removed from Turkey or their departure from Turkey is not reasonable or Turkish citizens without health coverage possible; [(…)] e) in cases when foreign only have access to free screening and nationals should be allowed to enter into treatment for tuberculosis. Regarding HIV, and stay in Turkey, due to emergency or in everyone, even individuals with health view of the protection of the national coverage, has to pay for their treatment interests as well as reasons of public order which is very expensive. and security, in the absence of the Finally, undocumented migrants do not possibility to obtain one of the other types have access to treatment. According to the of residence permits due to their situation team in Istanbul, most of them would have that precludes granting a residence permit; better access to these treatments in their f) in extraordinary circumstances”. country of origin through non- In these cases, seriously ill foreign nationals governmental organisations working in can obtain a humanitarian residence permit these areas. Thus, the small minority of and not be expelled to their country of undocumented migrants that find out that origin or to their country of former usual they are HIV positive often decide to return residence. to their country of origin to be treated.

966 “During his visit, the Special Rapporteur on the http://www.globaldetentionproject.org/countries/eu Human Rights of Migrants expressed concern about rope/turkey/introduction.html the situation of children at both the Kumkapi and 967https://www.amnesty.org/en/documents/eur44/30 Edirne removal centres. Boys over the age of 12 22/2015/en/ apprehended with their mothers were automatically 968 Op. cit. note 952 separated from their mothers and placed in orphanages (SRHRM 2012)”

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decisions about specific charges may differ UNITED KINGDOM in the different countries of the UK.

National Health System The Health Act 2009 established the NHS Constitution969 which formally brings together the purpose and principles of the Organisation and funding of British NHS in England, its values, as they have healthcare system been developed by patients, public and In the United Kingdom, a comprehensive staff, and the rights, pledges and public health service was established by the responsibilities of patients, the public and National Health Service Act of 1946 and staff970. Scotland, Northern Ireland and subsequent legislation. The NHS was Wales have also agreed a high-level finally introduced two years later. It was statement declaring the principles of the born out of a long-held ideal that quality NHS across the UK, even though services healthcare should be available to all may be provided differently in the four nationals and residents in the UK and free countries, reflecting their different health at the point of use. That principle remains at needs and situations971. its core. The NHS is a residence-based system, unlike many other countries, which The NHS is intended to provide universal have insurance-based healthcare systems. health coverage to the population in the UK. All “ordinarily residents” in the UK are This health system is known as a automatically entitled to healthcare that is Beveridgean system, financed by general largely free at the point of use through the taxation which ensures that each person NHS972, except for certain minor charges. should be protected from cradle to grave. The NHS is managed separately in England, People from EU countries are also entitled Northern Ireland, Scotland and Wales. to care free at the point of delivery if they Some differences have emerged between have an EHIC. People who are not these systems in recent years but they ordinarily resident in the UK, such as short- remain similar in most respects and term visitors or undocumented migrants, continue to be described as a unified are only entitled to limited free secondary system. care in emergency departments and for certain infectious diseases, unless they fit Despite numerous political and into one of the categories of people who are organisational changes, the NHS remains to exempt from treatment charges. date a service available “universally”, that cares for people on the basis of need and not Since April 2013, in England, all GP ability to pay, and which is funded by taxes practices belong to a Clinical 973 and national insurance contributions. With Commissioning Group (CCG) which the exception of charges for some commissions most health services for the prescriptions and services, the NHS population in its area, including: planned remains free at the point of use. This hospital care; rehabilitative care; urgent and principle applies throughout the UK but emergency care; most community health

969 The NHS Constitution for the England of 26 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC340 March 2013, 5352/pdf/13167_2010_Article_50.pdf http://www.nhs.uk/choiceintheNHS/Rightsandpled 971 Ibid. ges/NHSConstitution/Documents/2013/the-nhs- 972 Op. cit. note 139 constitution-for-england-2013.pdf 973http://www.patient.co.uk/doctor/clinical- 970 K. Grosios et al., “Overview of healthcare in the commissioning-groups-ccgs UK”, EPMA Journal, 2010,

 Page 159 UNITED KINGDOM services; maternity services; and mental he has adopted voluntarily and for settled health and learning disability services974. purposes as part of the regular order of his life for the time being, whether of short or The concept of ordinary residence of long duration”977. The NHS (Amendment) Act 1949 created The only caveat in the context of access to powers – now contained in Section 175 of NHS secondary care is that the person must the 2006 NHS Act – to charge people in the be in the UK lawfully, and have the right to UK who are not “ordinarily residents” for be here, but they do not need to have the health services. The powers were first used right to reside permanently. “Temporary in 1989975 to make Regulations in relation admission” (a form of entry to the UK to NHS hospital treatment, now granted pending an immigration decision, consolidated as the NHS (Charges to as an alternative to detention for people Overseas Visitors) Regulations 2015976. liable to detention and removal) does not 978 Since 1989, only those “ordinarily resident” amount to residence. . Ordinary residence in the UK are entitled to free NHS should not be confused with permanent secondary care (i.e. hospital treatment), residence, usual residence or other phrases 979 others will have to pay for them, unless they describing residence fall under the exemption category. Nobody In May 2014, the government published a is excluded from primary care (i.e. GP new Immigration Act 2014980 which treatment). 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. hadn’t been defined in legislation. Instead, According to the Government981, the Act is it took its meaning from case law and 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 UK982; end the defined concerned entitlement to grants for “abuse” of Article 8 of the European higher education. The House of Lords Convention on Human Rights – the right to defined ordinary residence as “a man’s respect for family and private life; and to abode in a particular place or country which prevent illegal immigrants accessing and

974Guide to the Healthcare System in England Analysis of the overseas visitor charging system, Including the Statement of NHS Accountability for http://fullfact.org/sites/fullfact.org/files/782677R% England, May 2013, 20Chap%202%20of%20Review%20pages%201- http://www.gov.uk/government/uploads/system/upl 52.pdf oads/attachment_data/file/194002/9421-2900878- 980Immigration Act of 2014 - Summary of Provisions, TSO-NHS_Guide_to_Healthcare_WEB.PDF http://www.jcwi.org.uk/sites/default/files/Immigrati 975Shah v Barnet London Borough Council and other on%20Act%202014%20Summary%20Provisions.p appeals [1983] 1 All ER 226 df 976NHS (Charges to Overseas Visitors) Regulations 981Race Equality Foundation, Access to services: the 1989/306: Immigration Act 2014 and key equality impacts, http://www.legislation.gov.uk/uksi/1989/306/regula 2014, tion/4/made http://www.edf.org.uk/blog/wp- 977Shah v Barnet London Borough Council and other content/uploads/2014/09/Equality-impacts-IA- appeals [1983] 1 All ER 226 Sepp2014-final.pdf 978R (YA) v Secretary of State for Health [2010] 1 All 982Please note that MdM and its partners, especially E.R. 87, PICUM, absolutely disagree with the use of « illegal http://www.refworld.org/docid/49d1fca62.html » designing a person. Only the laws declaring that a 979Department of Health, Internal review of the person is illegal are illegal. No one is illegal. overseas visitor charging system - Part 2 http://picum.org/en/our-work/terminology/

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“abusing” public services or the labour will no longer be exempted from the “health market983. surcharge” fee988 (see below).

Section 39 Immigration Act 2014984, which Accessing the NHS came into force on 6 April 2015, introduced an additional element to the definition of Primary care “ordinary residence” in the context of As of March 2015, patients in England pay eligibility for free NHS treatment, by £8.2 per prescription989, but some patients excluding all those who do not have 985 who need more than 13 prescriptions per indefinite leave to remain in the UK . This year or four prescriptions in three months applies to those who need leave to enter or can obtain reductions through a prescription remain but also those currently living and prepayment system990. In Wales991, working in the UK with limited leave to 992 993 986 Scotland and Northern Ireland , remain . It therefore increased the prescription charges have been abolished. threshold for “ordinary residence”, as indefinite leave to remain can only be Medicines administered at a hospital, a applied for after a minimum of 5 years walk-in centre or a GP practice, prescribed residence in the UK, excluding temporary contraceptives, medicines supplied at a migrants from free healthcare to which they hospital or local clinic for the treatment of previously had access. sexually transmitted infections or tuberculosis are free. Furthermore, all In addition to the changes in primary and prescriptions are free for patients over 60 secondary legislation, the Department of years old, under 16 years (under 25 in Health (DH) has introduced a programme Wales) and under 18 for full-time students; aimed at recovering costs from foreign pregnant women and mothers who have had nationals called the Migrant and Visitor their child in the last year; the chronically ill Cost Recovery Programme. The (e.g. cancer and diabetes patients) and programme is divided into four phases: disabled patients; as well as for people who improving cost recovery from the current receive some form of means-tested social charging system, improving identification security benefit994. of those who are eligible for/exempt from charging, and implementing the migrant Patients on a low income can claim for help surcharge and extended charges to other with health costs (by filling out an HC1 services. In 2016 DH consulted on making form). Help with health costs depends on changes in primary care, secondary care, the patient’s financial resources and not on community healthcare and changing current immigration status. The NHS decides residency requirements for EEA citizens987. whether a patient should receive full help ,. Starting 6 April 2016, Australia and New with health costs (an HC2 certificate) or Zealand nationals planning to come to the partial help (an HC3 certificate). The UK or stay in the UK for more than 6 month certificate is usually valid for one year from

983 Op. cit. note 981 989https://www.gov.uk/government/speeches/nhs- 984http://www.legislation.gov.uk/ukpga/2014/22/se charges-from-april-2016 ction/39/enacted 990 Ibid. 985 Op. cit. note 980 991http://www.wales.nhs.uk/nhswalesaboutus/budge 986 Op. cit. note 980 tcharges 987https://www.gov.uk/government/uploads/system/ 992http://www.psd.scot.nhs.uk/prescriptioncharges.h uploads/attachment_data/file/483870/NHS_chargin tml g_acc.pdf 993http://www.nhs.uk/ipgmedia/national/Asthma%2 988https://www.gov.uk/government/news/immigrati 0UK/Assets/Prescriptionchargesandasthma.pdf on-health-surcharge-extends-to-australia-and-new- 994http://www.nhs.uk/NHSEngland/Healthcosts/Pag zealand es/Prescriptioncosts.aspx

 Page 161 UNITED KINGDOM the date of issue and must be produced each temporarily residing; or is moving from time when collecting a prescription or place to place and not for the time being receiving treatment, e.g. dental care, resident in any place”. glasses, etc.995. 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. Therefore Care Act 2012996 states that Clinical asylum seekers, refugees, people on work Commissioning Groups (CCGs) “must visas and overseas visitors, whether they arrange for the provision of services to have permission to reside in the UK or not, patients (…) usually resident in its area”. are eligible to register with a GP practice. Usual residence is not formally defined, but GPs cannot refuse to register a patient for Regulation 3 of the National Health Service reasons that are discriminatory (on the (CCGs – Disapplication of Responsibility) grounds of race, gender, social class, age, Regulations 2013997 specifies that people religion, sexual orientation, appearance, are to be treated as “usually resident” at the disability or medical condition). A GP address given by them (or by someone on practice can only refuse to register a patient their behalf), if they give no address then if: their list is closed to new patients; the they are to be treated as usually resident patient lives outside the catchment area; or wherever they are present, thereby formally they have other reasonable grounds. unlinking immigration status from Inability to provide proof of address or eligibility for primary care. proof if identity are not reasonable groups to refuse a registration1001. Regulation 2 of the NHS (General Medical Services Contracts) Regulations 2004998 Secondary care (GMS Regs), which governs the delivery of many NHS primary medical services999, Ordinarily residence defines “patient” as including temporary All “ordinarily residents” of the UK are residents. Paragraph 16 of Schedule 6 GMS automatically entitled to secondary Regs1000 goes further in specifying that healthcare that is largely free at the point of “contractors may (…) accept a person as a use through the NHS1002. People who are temporary resident provided it is satisfied not ordinarily resident, such as visitors or that the person is temporarily resident away undocumented migrants, are only entitled to from his normal place of residence and is limited free secondary care in emergency not being provided with essential services departments and for certain infectious (or their equivalent) under any other diseases, unless they come within one of the arrangement in the locality where he is

995http://www.nhs.uk/NHSEngland/Healthcosts/Pag http://www.legislation.gov.uk/uksi/2004/291/regula es/nhs-low-income-scheme.aspx tion/2/made 996National Health Service Act of 2006, 999Many 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. 997The National Health Service (Clinical 1000http://www.legislation.gov.uk/uksi/2015/196/pd Commissioning Groups— Disapplication of fs/uksi_20150196_en.pdf Responsibility) Regulations of 2013, 1001NHS 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/wpcont 998The National Health Service (General Medical ent/uploads/sites/12/2015/11/pat-reg-sop-pmc- Services Contracts) Regulations of 2004, gp.pdf 1002Op. cit. note 139

 Page 162 UNITED KINGDOM categories of people who are exempt from territory specified in Schedule 2” of the charges. Regulations1006. Non EEA nationals Exemptions Since 6 April 2015, as provisions of the Some NHS services are free to everyone Immigration Act 2014 came into force, regardless of the status of the patient: nationals of countries from outside the EEA coming to the UK for longer than six  Services provided for the treatment of months are required to pay a “health a physical or mental condition caused surcharge” when they make their by torture, female genital mutilation, immigration application1003. This also domestic violence or sexual violence, concerns third-country nationals already in provided that the overseas visitor has the UK who apply to extend their stay. not travelled to the United Kingdom for the purpose of seeking that The health surcharge is of £200 per year and treatment1007. This includes mental £150 per year for students, payable upfront health treatment. and for the total period of time for which  Accident and emergency (A&E) migrants are given permission to stay in the services, whether provided at a UK. It entitles the payer to NHS funded hospital accident and emergency healthcare on the same basis as ordinarily department, a minor injuries unit or a residents. People who live outside the EEA walk-in centre or elsewhere1008. and do not have insurance will be charged  Family planning services and at 150% of the NHS national tariff for any treatment of sexually transmitted secondary care they receive. Certain infections1009 – although details of the categories are exempted from charging as services are not specified in Reg. 9, UK Crown servants or members of armed family planning clinics typically offer forces1004. A New National Health Service advice about sexual and reproductive Bill1005, currently under discussion, might health, as well as contraception repeal this provision, as well as section 39 (combined oral contraceptive pills, of the 2014 Immigration Act progestogen-only pills, progestogen injections, emergency contraception Reciprocal healthcare agreements and intrauterine devices), limited Under Regulation 14 NHS (Charges to supplies of free condoms, cervical Overseas Visitors) Regulations 2015, “no screening and pregnancy tests1010, as charge may be made or recovered in respect well as testing for STIs. of any relevant services provided to an  Diagnosis and treatment for overseas visitor where those services are communicable diseases such as provided in circumstances covered by a influenza, measles, mumps, reciprocal agreement with a country or tuberculosis, viral hepatitis and HIV/AIDS1011.

1003https://www.gov.uk/government/publications/gu 1008Ibid. idance-on-overseas-visitors-hospital-charging- 1009Op. cit. note 1007 regulations/summary-of-changes-made-to-the-way- 1010http://www.nhs.uk/Conditions/contraception- the-nhs-charges-overseas-visitors-for-nhs-hospital- guide/Pages/contraception-clinic-services.aspx care 1011 Schedule 1 of the Regulations specifies those 1004 Ibid. diseases for which no charge is to be made: acute 1005http://www.publications.parliament.uk/pa/bills/c encephalitis, acute poliomyelitis, anthrax, botulism, bill/2015-2016/0037/16037.pdf bruscellosis, cholera, diphtheria, enteric fever 1006 Op. cit. note 1003 (typhoid and paratyphoid fever), food poisoning, 1007http://www.gov.uk/guidance/nhs-entitlements- haemolytic uraemic syndrome, infectious bloody migrant-health-guide diarrhoea, invasive group A streptococcal disease

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The following categories of the population that anyone who has been granted are exempt from charges: refugees, asylum temporary protection, asylum or seekers, those whose application for asylum humanitarian protection under the was rejected, but who are supported by the immigration rules made under Section 3(2) Home Office or a local authority, children of the Immigration Act 1971 is exempt from looked after by a local authority, victims of charges. Regulation 15(b) states that human trafficking and modern slavery; anyone who has made a formal application those receiving a compulsory treatment with the Home Office to be granted under the mental health Act, prisoners and temporary protection, asylum or immigration detainees1012. There may also humanitarian protection is also fully exempt be exceptional humanitarian reasons where from charges whilst their application is the secretary of state can determine that being processed1016. This includes treatment should be provided, although in applications for leave to remain made on the practice these will be very rare1013. basis that return to country of origin would breach Article 3 ECHR1017. Any treatment which is considered to be immediately necessary by clinicians This exemption will apply to the immediate (including all maternity care), whilst family of the asylum seeker if they are chargeable, must be provided without living in the UK with that person on a waiting for payment or even a deposit. permanent basis. Asylum seekers and However, the patient may still be billed rejected asylum seekers who are not entitled during or after treatment1014. Hospitals are to free prescriptions under these categories required to inform the Home Office of have to make a Low Income Scheme (LIS) patients who owe the NHS more than €585 HC1 claim1018. and such people may be refused visa renewals or regularisation of their In 2009, the Court of Appeal in England and immigration status until the debt is paid1015. Wales, overturning an earlier High Court judgment, ruled that rejected asylum Access to healthcare for migrants seekers could not be considered ordinarily resident in the UK for the purposes of the Asylum seekers and refugees charging regulations and could not become exempt from charges after living in the UK Regulation 15 (a) of the NHS (Charges to Overseas Visitors) Regulations 2015 states

and scarlet fever, invasive meningococcal disease 1014Department of Health, Guidance on (meningococcal meningitis, meningococcal implementing the overseas visitor hospital charging septicemia and other forms of invasive disease), regulations 2015, legionnaires’ disease, leprosy, leptospirosis, malaria, https://www.gov.uk/government/uploads/system/up measles, mumps, pandemic influenza or influenza loads/attachment_data/file/418634/Implementing_o that might become pandemic, plague, rabies, rubella, verseas_charging_regulations_2015.pdf Severe Acute Respiratory Syndrome (SARS), 1015https://www.gov.uk/government/uploads/system smallpox, tetanus, tuberculosis, typhus, viral /uploads/attachment_data/file/507694/Overseas_ch hemorrhagic fever, viral hepatitis, whooping cough, argeable_patients_2016.pdf yellow fever and, since the 2012 amendment, also 1016The National Health Service (Charges to HIV/AIDS. Overseas Visitors) Regulations of 2011, http://www.legislation.gov.uk/uksi/2015/238/sched http://www.legislation.gov.uk/uksi/2011/1556/regul ule/1/made ation/11/made 1012https://www.gov.uk/government/uploads/system 1017Para 7.28 of the DH guidance – /uploads/attachment_data/file/496951/Overseas_vis https://www.gov.uk/government/uploads/system/up itor_hospital_charging_accs.pdf, p. 11-12 loads/attachment_data/file/496951/Overseas_visitor 1013Op. cit. Note 1007 _hospital_charging_accs.pdf 1018http://www.nhsbsa.nhs.uk/HealthCosts/1136.asp x

 Page 164 UNITED KINGDOM for 12 months prior to treatment1019. As person needs to have been in the UK before health policy is a devolved responsibility, a GP can register them1023. however, different exemptions, policy and guidance exists in each of the four countries The NHS allows people from abroad – if and access to free hospital treatment for they are accepted for NHS treatment – to refused asylum seekers differs from country claim help with health costs in the same way to country within the UK1020. as other patients. In the same way as UK citizens, undocumented migrants can be In Scotland and Wales, asylum seekers and exempt from prescription charges, dental refused asylum seekers are entitled to free care charges, etc. with an HC2 certificate. secondary health care on the same terms as any other ordinary resident. In England, Adults over 60 have automatic free only refused asylum seekers who receive prescriptions and eye tests. They can obtain accommodation and support from the Home free dental treatment with an HC2 1024 Office under section 4(2) Immigration & certificate . However, obtaining an Asylum Act 1999 or accommodation and exemption certificate does not ensure that support from a local authority under the an undocumented patient can access NHS Care Act 2014 are entitled to free secondary care – it only helps with the cost of health care. However, all refused asylum prescriptions. Undocumented migrants do seekers can continue, free of charge, with have to pay for NHS hospital and secondary any course of treatment already underway care charges. before their application was refused1021. Regarding access to secondary care, Focus on pregnant women and children undocumented migrants are only entitled to limited free secondary care in emergency Under this scheme, pregnant asylum departments and for certain infectious seekers and refugees have free access to diseases, unless they come within one of the antenatal, delivery and postnatal care. The categories of people who are exempt from children of asylum seekers and refugees, charges. Thus, they have to pay to access like adults, have free access to the NHS and secondary care, although immediately this includes vaccination. necessary or urgent treatment should not be withheld pending payment. Undocumented migrants Undocumented migrants are not excluded Undocumented pregnant women from primary care. Indeed, the Secretary of Undocumented pregnant women should State for Health (health minister) receive maternity care but this is announced that there is no formal chargeable. Indeed, maternity care, requirement to provide documentation including antenatal care, delivery and when registering with a GP. GPs do not postnatal care, is not free at the point of use have any financial reason not to register as it is considered as secondary care. Thus, undocumented migrants – their global sum hospitals usually bill for a full course of care payments in respect of overseas patients do throughout the pregnancy, which is around 1022 not differ from that of other patients . €7,000 if there are no complications. Finally, there is no minimum period that a

1019Op. cit. note 978 1022http://www.publications.parliament.uk/pa/cm20 1020Op. cit. note 1014 1213/cmhansrd/cm121026/text/121026w0001.htm 1021Regulation 3(5) NHS (Charges to Overseas 1023 Op. cit. note 982 Visitors) Regulations 2015/238 1024 http://patient.info/health/help-with-health-costs

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The Department of Health has stressed  any other treatment which, in the repeatedly that providers also have human opinion of a medical or dental rights obligations, meaning that treatment practitioner employed by or under considered by clinicians to be immediately contract with a CCG, is required necessary (including all maternity promptly for a condition which: arose treatment) must never be withheld from after the visitor’s arrival; or became chargeable patients, even if they have not acutely exacerbated after their arrival; paid in advance. or would be likely to become acutely exacerbated without treatment; plus Children of undocumented migrants  the treatment of chronic, or pre- Vaccination is available for all children and existing, conditions, including routine adults through their GP and baby clinics. monitoring and routine maternity Children also have free access to dental care. care. Charges for secondary care are applied If economically active in the UK (i.e. to undocumented children in the same ways employed, self-employed, involuntarily as adults. unemployed for less than six months or temporarily incapacitated), the patient is EU citizens likely to have a right to reside in the UK EU citizens have the same access to primary under the Immigration (EEA) Regulations care as UK nationals and can benefit from 2006 and EU Directive 2004/38. The UK is the same exemptions from secondary care thus prohibited from treating such patients charging regulations. Entitlement to free any differently from UK nationals, so as NHS treatment will depend on the long as they are not short-term visitors they individual’s circumstances and, in will have a right to free hospital treatment particular, whether they are insured in their either by being considered “ordinarily country of origin, which is best resident” in the UK, or by having an demonstrated by having an EHIC. EEA enforceable right to treatment through EU nationals may also, of course, be “ordinarily law1026. resident” in the UK if they are here lawfully, have been in the UK for more than Termination of pregnancy a short period and intend to remain. Termination of pregnancy is possible during the first 24 weeks of pregnancy (and, If insured, an EEA or Switzerland national later in the pregnancy in certain is exempt from charges for “all medically circumstances,) and must be carried out in a necessary treatment”, i.e. treatment that it is hospital or a specialist licensed clinic (e.g. medically necessary to have during their in some local family planning clinics or temporary stay in the UK, with a view to genito-urinary medicine clinics that are also preventing them from being forced to return accessible to undocumented women)1027. home for treatment before the end of the planned duration of their stay. For instance, Two doctors must agree that a termination 1025 regarding England, this means : would cause less damage to a woman’s physical or mental health than continuing  diagnosis of symptoms or signs with the pregnancy1028. According to the occurring for the first time after the MdM UK team in London, it may be visitor’s arrival in the UK; difficult to obtain a termination of

1025 Op. cit. note 1014 1028 Abortion Act of 1967, this Act 1967 covers 1026 Op. cit. note 1014 England, Scotland and Wales but not Northern 1027http://www.nhs.uk/conditions/Abortion/Pages/In Ireland troduction.aspx

 Page 166 UNITED KINGDOM pregnancy free of charge without a referral Cases where it is claimed that removal from a GP. In addition, in some areas, would be a breach of Article 3 of the termination of pregnancy is seen as an European Convention on Human Rights on elective procedure which can then be medical grounds will not be considered charged for like maternity care. eligible for Humanitarian Protection, given that “in such cases the alleged future harm Unaccompanied minors would emanate not from the intentional acts Unaccompanied minors who are “seeking or omissions of public authorities or non- asylum” or have “refugee status” are State bodies, but instead from a naturally exempt from charges in the same way as occurring illness and the lack of sufficient any other asylum seeker or refugee. If there resources to deal with it in the receiving 1031 is nobody with parental responsibility who country” . Instead, they should be is able to look after them, they enter local considered under the Discretionary Leave authority care under the Children Act 1989 policy. and become “looked after children”, meaning that they are exempt from all This Discretionary Leave can be granted to charges1029. Unaccompanied minors whose persons (seeking asylum or not) who asylum claims are rejected will, once they require medical, social or another form of turn 18 and leave local authority care, no assistance which can be provided in the UK. longer be exempt from charging. The improvement or stabilisation of an applicant’s medical condition resulting Protection of seriously ill foreign from treatment in the UK and the prospect of serious or fatal relapse on expulsion do nationals not in themselves render expulsion inhuman Discretionary Leave and Humanitarian treatment contrary to Article 3 of the Protection were introduced on 1 April 2003 European Convention on Human Rights. to replace Exceptional Leave to Remain1030. The threshold set by Article 3 is therefore a Humanitarian Protection is granted when a high one as interpreted by the UK and the person is found not to be a refugee under the European Court of Human Rights. It is 1951 Convention relating to the Status of “whether the applicant’s illness has Refugees and the 1967 Protocol (the reached such a critical stage that it would Refugee Convention) but there is a well- be inhuman treatment to deprive him/her of founded fear of the death penalty, torture, the care which s/he is currently receiving inhuman and degrading treatment or a and send him/her home to an early death serious threat against his/her life relating to unless there is care available there to widespread violence resulting from a enable him/her to meet that fate with situation of internal or international armed dignity”1032. conflict.

1029J. Simmonds and F. Merredew, “The Health 1031 N. v United Kingdom, 2008, European Court of Needs of Unaccompanied Asylum Seeking Children Human Rights, and Young People”, EP23 - LAC 9.4 http://www.refworld.org/docid/483d0d542.html Unaccompanied asylum seeking children, The European Court of Human Rights reached the https://www.nice.org.uk/guidance/ph28/evidence/lo same conclusion as the House of Lords. oked-after-children-ep23-unaccompanied-asylum- 1032N. v Secretary of State for the Home Department, seeking-children-john-simmonds-and-florence- 2005, House of Lords, merredew2 http://www.bailii.org/uk/cases/UKHL/2005/31.html 1030https://www.gov.uk/government/uploads/system /uploads/attachment_data/file/312346/discretionary leave.pdf

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To meet the very high Article 3 threshold, Before 2004, free HIV (and any other an applicant must show exceptional chargeable) treatment was available for circumstances that prevent return, namely anyone who had spent the previous twelve that there are compelling humanitarian months in the UK, whether it was legally or considerations, such as the applicant being not. in the final stages of a terminal illness without prospect of medical care or family In 2004, the rule was changed, so that the support on return. twelve months’ residency had to be lawful, so HIV (and any other chargeable) The duration of Discretionary Leave treatment available only to those legally granted is determined by a consideration of living in the UK. This meant that short-term the individual facts of the case but leave is overseas visitors and undocumented not normally granted for more than 30 migrants (such as failed asylum seekers or months at a time1033. Subsequent periods of people who had not applied for legal leave can be granted providing the applicant residence) had to pay to receive continues to meet the relevant criteria. antiretroviral HIV treatment through the 1035 Thus, foreign nationals who apply for National Health Service . Discretionary Leave have to be close to However, a High Court case in April 2008 death in order to have a chance to obtain it. saw a judge declare that refusing free NHS treatment to failed asylum seekers was Prevention and treatment of HIV unlawful and a possible breach of human The question of who should be able to rights1036. In March 2009, this ruling was receive free HIV/AIDS screening and overturned and the Court of Appeal ruled treatment in the UK has been a much that failed asylum seekers should not be 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 UK1034. 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 get tested and find out their status1037. alternative arrangements are made. Indeed, HIV treatment is always considered as “immediately necessary”.

1033 Op. cit. note 998 1036S. Boseley, “Asylum seekers have right to full 1034http://www.aidsmap.com/HIV-treatment-and- NHS care, high court rules, but government care/page/2526102/ considers appeal”; The Guardian, 2008, 1035The National Health Service (Charges to http://www.theguardian.com/uk/2008/apr/12/immig Overseas Visitors) (Amendment) Regulations of ration.publicservices 2004, 1037 http://www.avert.org/hiv-treatment-uk.htm http://www.legislation.gov.uk/uksi/2004/614/conte nts/made

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The SSN organization is divided in three ITALY levels: national, regional and local.

Note specific to this section The national level, embodied by the Ministry of health and several specialized As the collection of data for this report agencies, is responsible for defining the started in 2015 as for Italy, information is principles and objectives of the health still being gathered for this country. system, determining the scope of the benefit Thus, this section will specifically deal with package of services guaranteed by the SSN the situation of undocumented migrants in and of allocating national funds to the Italy. We thank our partner NAGA Milano regions. for the information provided. Regional government are in charge of ensuring the delivery of public health National Health System services. Constitutional basis Finally, local health authorities’ (Aziende Article 32 of the Italian Constitution1038 Sanitarie Locali, ASLs), and public or states that “The Republic protects private accredited hospitals deliver health individual health as a basic right and in the services1039. public interest; it provides free medical care to the poor.” Funding What is more, the responsibility for health The public system is financed through a care is determined by article 117 of the corporate tax, collected nationally and Italian Constitution: « responsibility for allocated back to regions, and through a health care is shared by the national fixed proportion of national value-added tax government and the 19 regions and 2 income perceived by the national autonomous provinces ». government and redistributed to regions unable to gather sufficient resources to Organisation and funding of Italy ensure essential levels of care1040. healthcare system Regions are authorized to produce their Organisation own additional revenue. Private health insurance has a very limited Italy’s health care system is a regionally role in the health system. In 2009, it based National Health Service (Servizio accounted for 1% of total spending1041. Sanitario Nazionale, SSN). It offers Private health insurances are of two sorts: universal coverage, largely free at the point corporate and non-corporate. of use.

1038Italian Constitution 1040The Commonwealth Fund, 2015 international http://www.constitutionnet.org/files/Italy.Constituti Profiles of health Care Systems, January 2016 on.pdf http://www.commonwealthfund.org/~/media/files/p 1039Ferré 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 1041Ibid.

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Accessing Italian healthcare system effectiveness. Medicines are divided into three tiers: The public National Health Service (NHS)  the first tier is always covered coverage is automatic and includes Italian  the second tier is covered only in citizens and legal foreign residents. hospitals Temporary visitors can access al services  the third tier is not covered upon payment. Services as cosmetic surgery are not Primary and inpatient care covered by the covered. National Health Service are free at the point of use. There are positive and negative list Services as orthodontics and laser eye that define respectively services covered surgery are covered on a case-by-case basis. and services not covered by the NHS. Or covered on a case-by-case basis. These lists Regions have the possibility to offer are determined using criteria as medical services not included in the essentials levels necessity, efficiency, human dignity and of care, if they can finance hem effectiveness. themselves1042. Services and goods covered by the NHS Cost-sharing include: GP consultations and hospital admission  Primary care stays are free of charge, but patients have to  inpatient care pay a co-payment for specialist visits. This  outpatient specialist care fee is limited up to a ceiling determined by  home care law, currently €36.15 per prescription1043.  preventive medicine  pharmaceuticals However, there are exemptions from cost-  dental care (only for specific sharing, which apply to: populations such as children up to 16  people over 65 years and under 6 years old, vulnerable people (the years old who live in households with disabled, people suffering of rare a gross income below the nationally diseases or HIV), destitute people, defined threshold and individuals with  severely disabled people urgent/emergency need)  prisoners  people with chronic or rare diseases For mental health, preventive, long-term-  HIV positive people care and public health services are not  Pregnant women (the exemption specifically listed in the essential care list. applies only to care related to their Instead, national legislation defines an pregnancy) organisational framework to be applied by the regions, which provide for these health services. Access to healthcare for migrants1044 The coverage of prescription medicines is dependent of their clinical and cost Undocumented migrants For irregular migrants, the services provided and co-payment modalities are

1042 Op. cit. note 1040 1044 The following content is based on the work and 1043 Op. cit. note 1040 observations of NAGA-Milano

 Page 170 ITALY similar to those in force for the Italian (complications, chronicity or worsened citizens, with the exception of Extra-EU conditions)’]1050. migrants who shall be exempt from co- payment in case of proven indigence (if so, These treatments include: an X01 code is assigned). The exemption is not provided to EU citizens.  First-level ambulatory health services (with direct access) and specialised If an irregular migrant is poor and signs a services to be provided at local health “statement of poverty” valid for 6 facilities or public/private accredited 1045 months , the same may ask for the health centres in the form of general assignation of a STP code (for Extra-EU ambulatories or hospitals, possibly in citizens) or an ENI code (for EU citizens) to connection with specifically obtain health care without a co-payment. experienced volunteering 1051 Urgent care associations  Hospitalizations: to be made upon “Urgent care” comprises treatments that request by the doctor who works in cannot be postponed without threatening the facilities1052 the life or possibly damaging the health of a person1046. All the services, prescriptions and reporting These services are co-payment exempt, practices shall be completed using the STP pursuant to the Legislative Decree no. (= TPF: Temporary Present Foreigner) 286/98, art.35, paragraph 41047 and to the code1053, for Extra-EU citizens, or the ENI ministerial circular no. 5, of 24 March (= NRE Non Registrable European) code 20001048, as for the Italian citizens1049. for EU citizens1054. The Local Health Units, by Hospitals, University Polyclinics and the Essential care Institutes for Treatment and Research, shall issue the STP and ENI codes. [‘Essential care’ means all ‘health, diagnostic and therapeutic services, [even In general, health services for essential care continuous] related to pathologies that are shall be provided: not dangerous immediately or in the short term, however they might originate a major  With co-payment (to undocumented health damage or life risk in time foreigners), if Italian citizens pay it1055

1045 See form 1, annexed to the Ministerial Circular 1051 Presidential Decree no. 394 of 31st August 1999 no. 5 of 24th March 2000 (Official Gazette no. 126 (ordinary integration no. 190/L to the Official of 1st June 2000), p. 44 O.G. and the State-Regions Gazette no. 258 of 3rd November 1999), article 43 Agreement no. 255/CSR of 20th December 2012 par. 8 (Official Gazette General Series no. 32 of 7-2-2013, and Ministerial circular no.5, of 24-3-2000 ordinary integration no. 9) 1052 Presidential Decree no. 394 of 31st August 1999, 1046 Ministerial Circular no. 5 of 24th March 2000 Article 43 par. 8 (Official Gazette no. 126 of 1st June 2000, [pages 36- 1053 As provided for in the ministerial circular no. 5 43] of 24-3-2000, page. 42 and in the State-Regions 1047 Legislative Decree no. 286 of 25th July 1998 Agreement no. 255 CSR, of 12th December 2012 (ordinary integration no. 139/L to the Official 1054 Note by the Ministry of Health DG Gazette no. 191 of 18th August 1998); RUERI/I/II/3152-P/1.3.b/1, 19/2/08 1048 Op. cit. note 8 and State-Regions Agreement no. 255/CSR of 20th 1049 Pursuant to art. 1, par. 796 item p of the law no. December 2012 296/2006 1055 Pursuant to the Leg. Decree no. 286/98, art.35, 1050 Ministerial Circular no. 5 of 24th March 2000 par. 4 and to the ministerial circular no. 5, of 24-3- 2000, p. 42 in the Official Gazette

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 Otherwise: for free (contrary to what following issue of the exemption happens for Italian citizens) in case of certificate): no co-payment obligation proven poverty. as for Italian citizens1058

The foreigner shall be then assigned with a People entitled to prevention services, to be specific X01 code1056 valid only for a single provided at the local units of the Prevention service and with a second declaration of Department: (national and regional vaccine indigence. The code X01 is in force only for plan, screening, HIV prevention1059): no co- the Extra-EU citizens and not for EU payment obligation as for Italian citizens. citizens1060. Therefore, as regards fully free health services, different rights apply to Extra-EU In addition, there are some special and EU citizens to the benefit of the former. situations where the foreigner who had irregularly entered the territory or who has Exemptions of co-payment applying for become irregular is however entitled to undocumented migrants1057: register under the RHS, pursuant to the State-Regions Agreement no. 255/CSR:  Elderlies (over 65). (If the elderly is in Italy for family reunification and  Request of international his/her arrival was before 5th protection/asylum, November 2008): no co-payment  Custody (including minors without obligation as for Italian citizens parents),  Women entitled to services aimed at  Awaiting regularization (temporary protecting pregnancy and maternity registration for foreigners awaiting (until 6 months after the child’s birth): regularization or to emerge from no co-payment obligation as for irregular work), Italian citizens  Pregnant women up to six months  People entitled to first-level health after the child’s birth, services with direct access, without  Prisoners in adult or minor’s jails, reservation and prescription (for patients in judicial psychiatric instance: general medicine, Drug hospitals, under custodial sentence Addiction Service (SERT), DSM, allowing work outside prison or Family Services): no co-payment subject to alternative measures, obligation as for Italian citizens.  Victims of slavery entered into social  People entitled to free services, protection programs (Leg. Decree no. pursuant to the criteria and the 286, of 25th July 1998, art. 18) limitations provided for by the regulations in force for Italian Finally, is to be noted that irregular citizens, in the presence of chronic foreigners who access a health facility diseases, rare pathologies and cannot be reported in any way to the disabling conditions (with the authorities, unless the case when this is

1056Annex to the Decree by the Ministry of 1057 Legislative Decree no. 286 of 25th July 1998 and Economics and Finance of 17th March 2008. 8.27 State-Regions Agreement no. 255/CSR of 20th Annex 12-National codes for exemptions from co- December 2012 payment. Official Gazette no. 86 of 11th April 2008. 1058 Legislative Decree no. 286 of 25th July 1998, And State-Regions Agreement no. 255/CSR of 20th State-Regions Agreement no. 255/CSR of 20th December 2012 and Ministerial Decree no. 296 of December 2012 (Official Gazette General Series no. 21st May 2001 32 of 7-2-2013, ordinary integration no. 9 1059Ministerial Decree of 1st February 1991 1060 State-Regions Agreement no. 255/CSR of 20th December 2012

 Page 172 ITALY mandatory for Italian citizens too, pursuant exclusion could be the difficulty to identify to the Leg. Decree no. 286 of 25th July the exact age sometimes, since no evidence 1998, art.35 par. 5. document is available. The Cross-Regional Migration and Health Services Commission Undocumented pregnant women (of the Health Commission Coordination at Pregnant women up to six months after the the Conference of Regions) issued a child’s birth can register under the RHS and document to this purpose (on 30th October receive free health care related to pregnancy 2014) entitled ‘Protocol for the and maternity. identification and holistic multidisciplinary ascertainment of the age of minors without Children of undocumented migrants parents’. However, the procedure – rather Health services to children (0 to 17 years of difficult in itself – was conceived for minors age1061) of irregular migrants are provided without parents and it would be generally through the registration under the Regional complex and expensive to extend its Health Service (RHS), pursuant to the implementation to minors in general. State-Regions Agreement no. 255/CSR of 20th December 2012. Thus, the age bracket between 14 and 17 is excluded almost everywhere from the All foreign minors aged 0 to 6 are not opportunities to access health services for submitted to co-payment, as the Italian minors. citizens1062, as stated in the Leg. Decree no. 286 of 25th July 1998, art 35, par. 3, item b EU citizens and in the State-Regions Agreement no. 255 The law makes a difference between EU CSR, of 12th December 2012, page 20 and citizens and extra EU citizens. page 37. The X01 exemption code, that cancels co- Minors aged 14 to 17 payment for the services that would require it and that applies when the patient cannot Children of undocumented migrants aged pay, can be used for Extra-EU citizens only from 14 to 17 years old are generally and does not apply for EU citizens. excluded from health services. In two regions (Lombardy and Umbria) no For irregular minors, a privileged health ENI code is assigned to EU citizens. For assistance is in place, with the registration this group of EU adult citizens, this involves under the NHS, compared to that for adults the impossibility to enjoy essential (using the STP or ENI code). In fact, only medicine ambulatory services, if not at the three Regions (Liguria, Lazio, Campania) ERs that often – however not always – meet currently acknowledge this privilege until those requirements without being able to 18 years of age. guarantee continuous treatment. In Puglia, a th In the other Regions, the age bracket from recent regional resolution (20 December 14 to 17 is excluded1063. The reason for this 2015) abolished the ENI code ‘limiting it to

1061The Law no. 176 of 27th May 1991: Ratification February 1993 art. 8 par. 16 and the following and execution of the New York Convention on the modifications). Rights of Children of 20th November 1989, art. 1063 The bracket between 14 and 17 is considered as 1:’…children as intended as all human beings aged still belonging to the lower age range by the below 18 …’ Convention on the Rights of Children, ratified and 1062At national level, the E01 exemption provides for implemented pursuant to the law no. 176 of 27th May Italian minors not to pay the health service if below 1991. The Convention and the related ratification the age of 6 and the total family income is lower than law are also referred to in item b of paragraph 3 in EUR36,151.98 per year (N. L. no. 537, of 24th the Consolidated Text no. 286/98 art. 35.

 Page 173 ITALY urgencies only’, thus putting this region in Indeed, the constitutional law no. 3 of 18th a situation which is similar to that of October 2001 ‘Changes in title 5 of the Lombardy and Umbria. second part of the constitution’ states however ‘… the protection of health is one The right to register under the RHS for all of the subjects of the concurrent legislation. foreign minors represents an example of In the concurrent legislation subjects, the inconsistency in the text of the Italian Regions are assigned with the legislative Health legislative framework. This right is power, with the exception of the definition stated in a different way for Extra-EU and of the fundamental principles which is EU citizens. reserved to the State…’

For extra-EU citizens, the State-Regions This possible legislative ambiguity fostered Agreement specifically provides for ‘the some interpretation differences in the mandatory registration of foreign minors on national law, founded on arbitrary readings the territory…’.The possibility to register of the essential levels of care, that were under the RHS for EU minors (not meeting translated into partial regional health the requirements) is not specifically stated, regulations that are quite different. To however it can be understood from the remedy this situation and make all the statement (State-Regions Agreement page regional legislations uniform, the State and 36): ‘… the protection of the minor’s health the Regions signed an Agreement (no. is specifically guaranteed as provided for in 255/CSR) on 20th December 2012. The the Convention on the right of Children (20- implementation of this Agreement is 11-1989), ratified and made executive however currently incomplete, which pursuant to the law no.176 of 27th May causes differences in the implementation. 1991…’1064. The right to register under the RHS for the EU minor (not meeting the The access of Romanians and Bulgarians requirements) is confirmed in art. 1 par. 2 of (defined as neo-EU citizens for some time) the Consolidated Text no.189/02 too.1065 in the European Union in 2007 created an unbalance as regards the health service Implementation of the national provision. Unlike the other EU member health legislation for states, not all Romanian and Bulgarian citizens can register under the NHS. This undocumented migrants involved some difficulties in the application The national health legislation guarantees of the mutual health service as already access to health care for irregular migrants. implemented among the other EU member Yet, the implementation level of the states. The Italian State progressively provided services is not satisfactory. codified this service for EU citizens that cannot be served under a mutual scheme, by First, the fragmentation of the national issuing some national indications, which legislation in the different regional however suffered late and incomplete legislations tends to reduce its conversions at regional level. effectiveness. The health legislation in Italy currently falls under the competence of both These critical points can be attributable the State and the Regions1066. mostly to a misunderstood regional

1064Law no. 176 of 27th May 1991, art. 2. ‘The States 1065Par. 2 in art.1 of the Leg. Decree no.189/02 states commit to respect the rights stated in this ‘This single text shall not apply to the EU-member- Convention and to guarantee them to all the children states’ citizens if not to the extent that they are more in their jurisdictions, without any differences…’ favourable regulations….’ 1066 L. no. 59 of 15th March 1997

 Page 174 ITALY autonomy in the implementation of the national principles and to the problems connected with the arrival of a large number of EU citizens to Italy, a part of whom does not meet the requisites to register under the NHS.

However, the difference in the implementaion of the law does not concern urgent care. Indeed, all regions provide for urgent care for free to both Extra-EU and EU irregular adults and minors, at public or private hospitals under agreement with the NHS. Essential medicine health services to irregular migrants are also guaranteed in all the Regions, under different modalities, however always in compliance with the principles in paragraph 8 of art. 43 in the Presidential Decree no. 394/99. Molise is the only exception, where it is currently possible to enjoy ambulatory services for essential pathologies only at Emergency Rooms. The difference between regions applies for essential medicine ambulatory services, as different modalities exist within the public facilities for the provision of these services.

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Acknowledgements Contributors This report would not have been possible This work received support from the without the contribution of all the Ministry of Health (France), the European coordinators and teams of volunteers and Programme for Integration and Migration employees from the various Doctors of (EPIM) – a collaborative initiative of the the World – Médecins du monde Network of European Foundations (NEF) – programmes and from our partners. and the European Commission (DG Health and Food Safety), under an operating grant from the European Union’s Health DRI: Camille Gutton Programme (2014-2020). BE: Nel Vandevannet

The content of this report represents the CA: Véronique Houle – Marianne Leaune views of the authors only and is their sole CH: Janine Derron responsibility; it cannot be considered to reflect the views of NEF, EPIM or partner DE: Johanna Offe – Sabine Fürst – Michael foundations, or of the European Knipper - Gwendolin Buddeberg (lawyer) Commission and/or the Consumers, Health ES: Miguel Perez Lozao – Beatriz Auseré and Food Executive Agency or any other (lawyer) – Alberto Leon (lawyer) body of the European Union. The European EL: Maritina Papamitrou – Stathis Commission and the Agency do not accept Poularakis (lawyer) any responsibility for use that may be made of the information it contains. FR: Flore Ganon-Lecompte IE: Pablo Rojas Coppari IT: NAGA Milano– Pierfranco Oliviani – Daniella Panizzut LU: Sylvie Martin NL: Margreet Kroesen – Joris Sprakel (lawyer) NO: Ida Gundersby Rognlien (lawyer) - Knut Rognlien (lawyer) RO: Ana Mohr – Dana Farcasanu (lawyer) SE: Eliot Wieslander – Linnéa Sandström SI: Helena Liberšar Author TR: ASEM - Lerzan Cane – Dr Sekouba Conde – Bayazit Ilhan MdM International Network: Dagna Frydryszak UK: Lucy Jones - Adam Hundt (lawyer)

Anne-Laure Macherey (2015 report)

Co-author Nathalie Simonnot [email protected]

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