COUNCIL
OF EUROPE ON HEALTH CARE FOR UNDOCUMENTED MIGRANTS
(March 2005)
The Committee on Social Rights of the Council of Europe, which has as a task to monitor the application of the European Social Charter, ruled that "legislation or practice that denies entitlement to medical assistance to foreign nationals, within the territory of a State Party, even if they are there illegally, is contrary to the Charter." This decision followed a complaint against the new French legislation filed by the organisation FIDH, supported by LDH and Gisti.
A
law dating from 30 December 2002 changed the French law on access to health care
for undocumented migrants. From then onwards, all undocumented migrants have to
pay part of the medical treatment. On top of that, those who are not able to
proof that they are in France for more than three months, do not receive state
medical assistance (AME) anymore, but are only eligible for treatment for
emergencies and life threatening conditions.
The
NGOs asked the Committee to rule that the legislation and practice at stake
contravene to the provisions of Articles 13 and 17 of the Revised Social
Charter.
|
Article
13 §§ 1 and 4: "With
a view to ensuring the effective exercise of the right to social and
medical assistance, the Parties undertake: 1.
to ensure that any person who is without adequate resources and who is
unable to secure such resources either by his own efforts or from other
sources, in particular by benefits under a social security scheme, be
granted adequate assistance, and, in case of sickness, the care
necessitated by his condition; (...) 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953." |
FIDH
stated that the law of 30 December 2002 constitutes a violation of the right to
medical assistance provided for by Article 13 of the Revised Charter, because it
ends the exemption of illegal immigrants with very low incomes from all charges.
Since the new law, beneficiaries now have to pay a flat-rate charge for medical
treatment outside hospital and a daily charge for in-patient hospital treatment.
FIDH
considers that under Article 13§4, the condition of "lawful presence in
the territory" only relates to the right to medical assistance on an equal
footing with nationals. In other words, the fact that the persons concerned
are unlawfully present may constitute a reason for them not to be entitled to
exactly the same treatment as nationals, but in no way would it justify denying
them all medical assistance.
|
Article
17 reads as follows: "With
a view to ensuring the effective exercise of the right of children and
young persons to grow up in an environment which encourages the full
development of their personality and of their physical and mental
capacities, the Parties undertake, either directly or in co-operation with
public and private organisations, to take all appropriate and necessary
measures designed: 1.
a. to ensure that children and young persons, taking account of the rights
and duties of their parents, have the care, the assistance, the education
and the training they need, in particular by providing for the
establishment or maintenance of institutions and services sufficient and
adequate for this purpose; b.
to protect children and young persons against negligence, violence or
exploitation; c.
to provide protection and special aid from the state for children and
young persons temporarily or definitively deprived of their family's
support; 2. to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools." |
FIDH
stated that the restriction on the rights of children and young persons arising
from the law of 31 December 2002 constitutes a violation of Article 17, as the
introduction of patient charges denies them the rights set out in Article 17.
The
Committee stated on an introductory note that the
Charter is a living instrument, dedicated to certain values which inspired it:
dignity, autonomy, equality and solidarity. The Charter must be interpreted so
as to give life and meaning to fundamental social rights.
Human
dignity is according to the Committee the fundamental value and indeed the core
of positive European human rights law - whether under the European Social
Charter or under the European Convention of Human Rights - and health care is a
prerequisite for the preservation of human dignity.
Given
the existence of a form of medical assistance benefiting these persons, the
Committee, being in doubt, considers that France does not violate
Article 13 of the Revised Charter.
However,
the committee stresses at the same time that
-
the concept of emergencies and life threatening conditions is not
sufficiently precise
-
the competent body to take decisions in this field is not clearly
identified.
-
there are numerous difficulties in the implementation in practice of the
provisions applicable to illegal immigrants in France for more that 3 months
-
the costs to be met by the state are narrowly defined
The
Committee considers that the situation in France is not in conformity with
Article 17.
The
Committee notes that
a)
medical assistance to the above target group in France is limited to situations
that involve an immediate threat to life;
b)
children of illegal immigrants are only admitted to the medical assistance
scheme after a certain time
It
should be noted that the decision should still be validated by the Committee
of Ministers of the Council of Europe. Usually the validation of collective
complaints (such as this one) goes through an express-procedure. In this case
however the ministers don't succeed in taking an express decision, since this
decision would entail serious consequences for their respective states.
En
français:
Press
release of FIDH/LDH/GISTI
: http://www.gisti.org/doc/actions/2005/ame/index.html