THE NETHERLANDS in het Nederlands
Right
to Fair Labor Conditions
Right
to Education and Training
Right
to a Minimum Subsistence
Right
to Moral and Physical Integrity
Can an undocumented migrant receive accommodation in a
public housing shelter or in a private shelter that receives public funding?
Public housing services have been effectively denied to undocumented
migrants since the introduction of the Linking Act (Koppelingswet).
Municipalities, however, often decide to offer reception facilities for certain
undocumented migrants (Dublin claimants, repeat applicants).
Is it legal for a landlord to rent out an apartment to
an undocumented migrant?
No information provided.
The ‘Koppelingswet’, translated as the ‘Linkage
Law’, which entered into force on 1 July 1998, deprives undocumented migrants
of the right to health insurance. The law links this right, together with all
other claims to collectively financed provisions, to the residence status.
It took a few years for this law to be passed mainly
due to the resistance of human rights organisations and organisations of
physicians (such as the Royal Dutch Doctors Organisation). All these
organisations realised that denying the right to insurance for undocumented
migrants would cause problems with accessing health care. In addition, there has
been a critical review of the first draft of the law in the light of
children’s and women’s rights.
Do undocumented migrants have access to public health
care or is there a special health service only for undocumented migrants?
Urgent
Medical Care
The
‘Koppelingswet’ changed Article 8b of the Dutch Aliens Act. This article
says in its new version that undocumented migrants are only entitled to
collectively financed provisions in case of ‘urgent medical care’ or for the
prevention of breaches of public health. It was a precondition in the
implementation of the law that urgent medical care would still be available, and
that the costs of this would not be charged to providers.
Due to
strong resistance, the minister responsible has changed the definition of
‘urgent medical care’, and stated on many occasions that every doctor has an
obligation to help anybody regardless of his or her position in society, race,
belief, etc. Instead of the word ‘urgent’, the term ‘necessary’ is used.
The official description of ‘urgent medical care’ is the following:
In case there is a danger for a third party, e.g. certain contagious diseases (in particular TB) and for psychological disturbances and consequent aggressive behaviour.
Pregnancy care (before and during birth).
Access for children without a status to preventive Health Care and to a vaccination programme similar to the national vaccination programme.
Since the passing of the law, there have been a lot of misunderstandings of the meaning of ‘urgent medical care’ among doctors but especially by the financial departments of the hospitals. Human rights organisations such as the Johannes Wier Stichting see it as their task to inform health service staff of the exact meaning of the term.
The
Linkage Fund
Two
provisions have been taken to ensure that the costs for health care do not fall
on the shoulders of the providers. The first provision is for the most costly
part of the health care system, which is hospitalisation. Hospitals have a
special write-off for unpaid bills (‘dubieuze debiteuren’). Since the
entering into force of the Linkage Law, the amount of the budget of ‘dubieuze
debiteuren’ is determined every year; before this happened on a three-yearly
basis. It should be noted that the costs for hospitalisation of undocumented
migrants are, by way of this provision of ‘dubieuze debiteuren’, in fact
paid from the collectively financed provisions.
The second
provision is the ‘Linkage Fund’ (Koppelingsfonds), installed for ‘first
line aid’ (like doctors, obstetricians, pharmacies). This Fund, which contains
5 million Euro, does not serve to pay the bills of the patients, but rather to
compensate the doctors for a loss of earnings. The 5 million Euro of the Fund
are basically the savings from the other part of the law. The savings from
social security, child support etc, were estimated at 5 million. It was a
neutral budget solution, not based on an estimated need.
The Fund
has been used now for two years. At first NGOs were fearing that 5 million Euro
would not be enough, but it turns out that even these 5 million are not fully
used. The problem is that it is very difficult to get an application accepted by
the Fund. First, there are several cumulative conditions that have to be
fulfilled. The health care provider should prove that the person is actually
undocumented, that the costs for the health care cannot be claimed in any other
way, that the provided care was urgent, and that the financial burden on the
provider was ‘excessive’. Furthermore, it is not possible for individual
doctors to ‘declare’ unpaid bills of their patients. Applying for money from
this Fund has to be seen as applying for subsidies. Applications have to be made
by an institution, in the framework of a regional cooperation[1][2]. The money applied for should be an estimation of
the costs in the coming year, based on the costs in previous years. In practice
NGOs found the GGDs (Gemeentelijke Gezondheidsdiensten/Communal Health Services)
prepared to organise admission to health care.
Volunteer
organisations (such as the Johannes Wier Stichting and many more) have done a
lot of work on emphasising the difficulties of accessing this money. As a
consequence, some adaptations have been made. The method of sending in financial
claims to the fund is getting easier and the criteria of the board of the fund
are becoming looser and looser. The tendency is toward a more normal claims
system.
ACCESS
TO GPs AND HOSPITALS
The system
in the Netherlands requires that every law has to be evaluated after 3, 4 or 5
years. For this reason, the government has commissioned some investigations on
access to medical care for undocumented migrants. Based on the results of these
investigations, the following can be stated.
GPs
For access
to general practitioners, the last investigation was done only very recently. (NIVEL,
2000) Interviews were held with general practitioners, midwives and first aid
departments of hospitals in order to get an overview of this access. The
conclusion of that investigation was that GPs are in general easily accessible.
It is noted however that in certain areas in big cities with a concentration of
foreigners (more than 10%), a limited percentage of GPs (5%) very regularly have
undocumented patients in their consultations. Often there are a few GPs that
have a reputation for rendering services to undocumented migrants; as a
consequence the share of uninsured patients in their practice can be huge. (NIVEL,
2000:38)
As it is
the individual caregiver who decides whether they take a patient or not,
patients themselves have no possibility to argue or to complain to any
institution about not getting the help needed. Undocumented migrants are
becoming more and more dependent on the few people who are willing and able to
render these services, even though there are no juridical or financial
obstacles.
In this
context it has to be mentioned that ‘De Witte Jas Health Centre’ in
Amsterdam, which has been providing medical care for undocumented migrants,
announced that it would close down. Among the reasons given it was said that it
was time that GPs took over responsibility for treating uninsured persons. By
putting an end to its services, the Health Centre hopes to force members of the
medical profession to provide care to clandestine immigrants and uninsured
persons. (MNS, March 2001)
Hospitals
In practice
access to hospitals is rather difficult. It might happen that the financial
advisor of the hospital has an interview with the undocumented migrant as soon
as they arrive to make an agreement on the bills. If they cannot agree and there
is no life-threatening situation, the hospitals will not help. Certain hospitals
accept payment in instalments afterwards. Some keep sending bills but never
really pursue them; however it may happen that a person who did not pay earlier
bills is refused further treatment.
According
to research cited above, 20 percent of all referrals to hospital are
unsuccessful. (NIVEL, 2000: 39) Three reasons are given: the patient refuses to
go to the hospital, the GP decides to treat the patient himself because of their
uninsured status, or the hospital asks for a financial guarantee. These facts
prove that sufficient knowledge of the existence of the ‘dubieuze debiteuren’
is still lacking. It is still necessary for the doctor who makes the referral to
phone the financial directors of the hospitals, to inform them that this system
exists.
In
his extensive study on the life of undocumented migrants in the city of
Rotterdam, Prof. Engbersen notes that the method of entering the hospital is
crucial. (Engbersen and Burgers, 1999) If the patient enters via an
outpatients’ clinic, help can be refused, whereas if the person comes in via
the emergency care, help is always given. Engbersen states furthermore that
access to hospitals is more problematic than to general practitioners, since the
tension between medical-ethical and financial-administrative aspects is bigger
when they are not (like for a GP) united in one person.
Do health care professionals have the duty to report an
undocumented migrant to the authorities? If yes, why? If no, why not?
No information provided.
3.
Right to Fair Labor Conditions
Does national labour law stipulate that an employer is
obliged to pay an undocumented migrant for work done, even if the worker does
not have a legal residence or work permit?
No information provided.
If an undocumented migrant has an accident at the
workplace, can s/he receive coverage from Social Security (via accident
insurance) to cover the costs of treatment or care?
No information provided.
Can an undocumented migrant bring a court case against
an employer for withheld wages?
No information provided.
Do undocumented migrants have the right to organize?
No information provided.
Can an undocumented migrant be a member of a trade
union?
Yes.
5.
Right to Education and Training
Can undocumented minors under the age of 18 enrol in
schools?
Yes, education for children up to the age of 18 is accessible. Nevertheless, a lot of parents are wary of sending their children to school, as they could be traced through their children.
There have been cases where schools have been reluctant to enrol
undocumented children, or even refused to do so.
Are schools obliged to report the presence of
undocumented children/adolescents to the authorities?
Although the “Koppelingswet” (Linking Act) stipulates that all
information concerning undocumented migrants is linked in order to exclude them
from government provisions, the schools are not obliged to report on
undocumented migrants.
Do schools receive any funding for these
children/adolescents?
Yes.
Do undocumented adults (over the age of 18) have the
right to education and training?
No, not in government schools and universities. The exception is that
s/he has started a course before reaching the age of 18. There are a few other
exceptional cases, like asylum seekers who started to attend university before
losing their asylum case and thus becoming illegal, where it is possible to
complete at least part of their studies. There are, however, NGOs and other
organisations which offer courses (language courses, etc.).
For
more information on undocumented children’s rights in the Netherlands: www.defenceforchildren.nl
Other
relevant sites for the Netherlands:
6.
Right to a Minimum Subsistence
Do undocumented migrants have a right to welfare
benefits from the government?
People
who were receiving social benefits before the Koppelingswet was introduced and
whose procedure is still continuing receive benefits either from the social
service or from special funds created by local governments. However, in all other cases
undocumented migrants cannot receive benefits.
Can an undocumented migrant legally get married or
legally cohabitate?
Yes,
but if an undocumented migrant wants to live legally with his/her spouse or
partner and apply for a residence permit, s/he has to return to their country of
origin and ask for a M.V.V. (authorisation of temporary residence) at the Dutch
embassy. Only with this M.V.V. can s/he apply for a residence permit at the
foreign police. Furthermore they will ask for a valid passport (at least one
year) and the partner will have to have a working contract (at least valid for
one year). These demands make it very difficult or simply impossible for
ex-asylum seekers to get married.
Is it legal to deport an undocumented migrant without
his/her spouse or child/ren?
If
the family entered the country together, then they cannot be deported
separately. However, if they entered separately and one of the members is a
Dublin claimant, they can and will be separated with very few exceptions.
8.
Right to Moral and Physical
Integrity
Are there rules and regulations upholding the right to
integrity of undocumented migrants in this country?
No,
and even nowadays, there is a discussion on whether to do dental or DNA research
on asylum seekers to establish their age (minors) or the family relation in the
case of a demand for family reunification.
Has this country been condemned for not respecting
international agreements concerning protection of the personal integrity of
undocumented migrants?
No information provided.
Are detention centres accessible to non-governmental
organizations?
In
many detention centres only the Vluchtelingenwerk groups are allowed. A visitor
can only enter upon request by the prisoner.
Are undocumented migrants entitled at any time to free
legal aid from a jurist or lawyer?
Publicly funded legal assistance is open to undocumented migrants.
Can undocumented migrants freely assert their rights in
court and in the appeals court?
Yes, if it is a matter relating to their residence status.