ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS 1 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS IN 10 EU COUNTRIES LAW AND PRACTICE 2 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS ISBN 978 2 918362 09 8 Cover Photo © Olivier Jobard Design and layout: Jeandé Marie-Aude, http://www.jeande.free.fr Publication 2009 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS 3 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS IN 10 EU COUNTRIES LAW and Practice 4 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS 5 06 Introduction 12 Executive summary BELGIUM 22 In practice p.37 FRANCE 41 In practice p.55 GERMANY 60 In practice p.78 ITALY 81 In practice p.91 MALTA 94 In practice p.104 NETHERLANDS 107 In practice p.118 PORTUGAL 122 In practice p.133 SPAIN 134 In practice p.145 SWEDEN 149 In practice p.160 UNITED KINGDOM 165 In practice p.176 178 Conclusion 181 Recommendations CONTENTS 183 Bibliography 6 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS INTRODUCTION The Global Commission on International Migration estimated in 2005 that between 4.5 to 8 million undocumented migrants live in the European Union (from 1,5% to 1.6% of the total population of Europe). In addition, the EU recorded 238,000 new asylum applications in 20081. The size of this population and the extremely precarious living conditions in which they remain everywhere in Europe raise concerns for Human Rights ad- vocates. Access to health care of these populations is a very relevant topic that must be openly debated since they are not accessing health care in Eu- rope at an acceptable level2. The first comparative study of the Médecins du Monde European Observatory of Access to Health Care that a five- country field survey in 2007 revealed the reality faced by undocumented migrants in Europe : undocumented migrants often do not access health care, even when they are entitled to it, mainly because of their fear of being denounced, their lack of information or the high costs of medical care which they cannot afford3. Access to health care for undocumented migrants and asylum seekers in Europe is directly linked to the issue of the fight against “illegal immi- gration”, which has been a central concern of the European Union for at least a decade. Since the entry into force of the Amsterdam Treaty in 1999, Member States have concentrated their efforts on forging com- mon systems of border control, preventing migrants from entering the European territory. At the same time, they have defined and started im- plementing a common asylum system. A series of directives adopted 1. UNHCR, Asylum levels and trends in industrialised between 1999 and 2004 by the European Union in order to design a countries 2008. Statistical overview of asylum appli- comprehensive approach to the asylum issue among Member States. cations lodged in Europe and select Non-European Recently, they have also organised the detention and deportation of un- countries, March 2009. 4 documented migrants . 2. Médecins du Monde, First European Observatory on Access to Health Care, However in this context, no room has been left for debate on the ques- 2007. tion of rights (including health care) of undocumented migrants. 3. The second report of the European Observatory on access to Health care of Médecins du Monde Nevertheless, International Human Rights instruments protect health care is available at www. as a fundamental right. The International Covenant on Economic Social mdm-international.org from September 2009. and Cultural Rights of the United Nations provides that States recognise 4. Directive 2008/11/EC, 16 “the right to the enjoyment of the highest attainable standard of physi- December 2008 on com- mon standards and pro- cedures in Member States for returning illegally staying third country nationals. ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS 7 cal and mental health”5 and this by “refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal migrants to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy”6. Furthermore, public health concerns are also of the utmost importance in this context: the effectiveness of public health policies depends on the ability of Member States to reduce health inequalities in terms of access to a wide range of health care including prevention for all the population present in the territory. Public health policies are also governed by the question of costs; a rationalization of the cost of health is essential to ensure a sound public health policy. Restricting access to emergency care may lead to an accu- mulation of health problems which might prove more expensive each time inpatient treatment is required at a later stage. In addition, neglecting access to primary health care for certain categories of the population, in this case the undocumented migrants, and leaving their health to be managed at the level of emergency only, runs counter to a policy intended to be economical and efficient. In this framework, Members States, have developed their own national sys- tems. Members States do not uniformly address healthcare needs of asylum seekers and undocumented migrants. Their particular choice is mostly in- fluenced by the health system in place (a national health system or an insu- rance-based system), their legal systems, migration and asylum history and geographic location within Europe (bordering countries or inner countries). Thus, most of the time, migration considerations take precedence over hu- manitarian and Human Rights considerations and sometimes even over pu- blic health concerns. This is shown by the fact that Member States have put 5. Article 12 (1) of the in place several levels of access to health care and introduced many admi- International Covenant on Economic Social and nistrative conditions to enable access to entitlements. Cultural Rights, Resolution 2200A (XXI) of 16 Decem- ber 1966. These administrative requirements (e.g. submission of valid identity docu- 6. See Committee on Eco- ments, proof of residence, proof of lack of enough economic resources, spot nomic Social and Cultural Rights, General Comment enquiries, etc.) tend to create new barriers to access health care instead of n° 14 (2000). The right to the highest attainable facilitating it. In addition, a general lack of information and prejudice against standards of health, E/C/2000/4, August 2000, migrants prevail in most of the countries. §34. For more details about International Human Rights and the right to health, see This report also deals with problems regarding access to health care for www.huma-network.org asylum seekers. Asylum seekers’ rights in Europe are enshrined in European 7. Directive 2003/9/CE of 27 January 2003 lying down minimum standards for the reception of asylum seekers. 8 ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS law. The Asylum Seekers’ Reception Directive7 of 2003 formally establishes that they should be entitled as a minimum to emergency care and essential treatment of illnesses. Most targeted countries comply with this obligation, however, in practice, asylum seekers in many countries are facing similar problems to those regarding undocumented migrants. This explains why this is the second targeted group of this report. THE PURPOSE AND METHODOLOGY OF THIS report In 2007, the Platform for International Cooperation on Undocumented Migrants (PICUM)8 issued within the framework of a European project, a documented comparison of eleven countries regarding law and practice and raised the necessity to improve access to health care as an urgent priority in order to guarantee the minimum respect for Human Rights. Two years later, the present report seeks to provide an updated over- view of the different systems regulating access to healthcare for undocu- mented migrants and asylum seekers in ten Members States (Belgium, France, Germany, Italy, Malta, the Netherlands, Portugal, Spain, Swe- den and the UK). In order to underline the specificities of the different groups and the types of care/treatment with the aim of demonstrating the existing discriminations in regards to legal entitlements and admi- nistrative conditions, a distinction has been made between: i) nationals, asylum seekers and undocumented migrants; ii) adults and children; and iii) types of care (primary and secondary, emergency, inpatient, ante-post natal) and treatments (medicines, treatment of HIV and treatment of other infectious diseases). The research also deals with health care entitlements for individuals confi- ned in detention centres and the residence permits or other mechanisms established by national legislations to protect seriously ill undocumented migrants and asylum seekers, who cannot effectively access treatments in their home countries, against expulsion. Finally, this information is complemented for each country by “testimo- nies from the field” seeking to provide an overview of the applicability of legal entitlements in daily practice and the main obstacles these popula- tions encounter when seeking health care. 8. PICUM, Access to Health Care for Undocumented migrants in Europe, 2007. ACCESS TO HEALTH CARE FOR UNDOCUMENTED MIGRANTS AND ASYLUM SEEKERS 9 The legal information has deliberately been presented as a table with the aim to facilitate comparison among countries regarding particular popu- lations or types of medical care. However wide differences in termino- logy and health care and legal systems existing between Member States make it necessary to propose a common terminology. The main source of information used during this study has been the le- gislation in force in the different countries in the fields of immigration, asylum and health care. This data has been analysed by a legal expert with the support of other law specialists in each country.