the right to health and undocumented migrants Milosz Swiergiel, NORP (IFMSA-Sweden) and Mirte Sprengers, NORP (IFMSA-The Netherlands) Small Working Group on Undocumented migrants access to health care IFMSA August Meeting 2008, Ocho Rios, Jamaica

The right to health and undocumented migrants 1. The right to health in human rights law 2. Core obligations relating to health care 3. Social determinants of health 4. Obligation to respect, protect and fulfil 5. Standards of health care services 6. Misconceptions about the right to health 7. Undocumented migrants and the right to health 8. References 1. The right to health in human rights law 2. Core obligations relating to health care 3. Social determinants of health 4. Obligation to respect, protect and fulfil 5. Standards of health care services 6. Misconceptions about the right to health 7. Undocumented migrants and the right to health 8. References

1. The right to health in human rights law  The right to health is a human right recognised in international human rights law.  The 1966 International Covenant on Economic, Social and Cultural Rights, article 12: ”The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.  There are also numerous other international and regional treaties as well as national constitutions recognising the right to health The Right to Health, Fact Sheet No. 31, Office of the UNHCR and WHO (2008)  The right to health is a human right recognised in international human rights law.  The 1966 International Covenant on Economic, Social and Cultural Rights, article 12: ”The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.  There are also numerous other international and regional treaties as well as national constitutions recognising the right to health The Right to Health, Fact Sheet No. 31, Office of the UNHCR and WHO (2008)

2. Core obligations relating to health care In the case of health care, the right to health obliges states to provide:  immunisation against major infectious diseases  measures to prevent, treat and control epidemic and endemic diseases  essential medicines  reproductive, maternal (pre-natal and post-natal) and child health care  essential primary health care  access to health facilities without discrimination  equitable distribution of all health facilities, goods and services In the case of health care, the right to health obliges states to provide:  immunisation against major infectious diseases  measures to prevent, treat and control epidemic and endemic diseases  essential medicines  reproductive, maternal (pre-natal and post-natal) and child health care  essential primary health care  access to health facilities without discrimination  equitable distribution of all health facilities, goods and services

3. Social determinants of health The right to health is not confined to health care. It also includes other factors that can help us lead a healty life. These factors are called the social determinants of health:  Safe drinking water and adequate sanitations  Safe food  Adequate nutrition and housing  Healthy working and environmental conditions  Health-related education and information  Gender equality The right to health is not confined to health care. It also includes other factors that can help us lead a healty life. These factors are called the social determinants of health:  Safe drinking water and adequate sanitations  Safe food  Adequate nutrition and housing  Healthy working and environmental conditions  Health-related education and information  Gender equality

4. Obligation to respect, protect and fulfil The right to health, like all human rights, imposes three types or levels of obligations on states:  The obligation to respect implies a duty of the state not to violate the right to health by its actions. The state must refrain from denying or limiting equal access for all persons.  The obligation to protect implies a duty of the state to take measures which prevent third parties from interfering with or violating the right to health.  The obligation to fulfil means that governments must act in order to ensure that rights can be enjoyed. The government must focus on rectifying existing imbalances in the provision of health facilities, goods and services. The right to health, like all human rights, imposes three types or levels of obligations on states:  The obligation to respect implies a duty of the state not to violate the right to health by its actions. The state must refrain from denying or limiting equal access for all persons.  The obligation to protect implies a duty of the state to take measures which prevent third parties from interfering with or violating the right to health.  The obligation to fulfil means that governments must act in order to ensure that rights can be enjoyed. The government must focus on rectifying existing imbalances in the provision of health facilities, goods and services.

5. Standards of health care services The right to health imposes four essential standards on health care services: 1) Availability of services requires that public health and health care facilities are available in sufficient quantity. 2) The health system has to be accessible to all. Accessibility has four overlapping dimensions: Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable. Physical accessibility : health facilities, goods and services must be within safe physical reach of all parts of the population. Economic accessibility : health services must affordable for all. Information accessibility : accessibility includes the right to seek, receive, and impart information concerning health issues. The right to health imposes four essential standards on health care services: 1) Availability of services requires that public health and health care facilities are available in sufficient quantity. 2) The health system has to be accessible to all. Accessibility has four overlapping dimensions: Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable. Physical accessibility : health facilities, goods and services must be within safe physical reach of all parts of the population. Economic accessibility : health services must affordable for all. Information accessibility : accessibility includes the right to seek, receive, and impart information concerning health issues.

5. Standards of health care services 3) Acceptability requires that health services are ethically and culturally appropriate. 4) Quality requires that health services must be scientifically and medically appropriate and of the highest quality. 3) Acceptability requires that health services are ethically and culturally appropriate. 4) Quality requires that health services must be scientifically and medically appropriate and of the highest quality.

6. Misconceptions about the right to health  The right to health is NOT the same as the right to be healthy!  The right to health is NOT only a civil right, but also a human right.  A country’s difficult financial situation does NOT absolve it from having to take action to realize the right to health.  The right to health is NOT only a programmatic goal to beattained in the long term.  The right to health is NOT the same as the right to be healthy!  The right to health is NOT only a civil right, but also a human right.  A country’s difficult financial situation does NOT absolve it from having to take action to realize the right to health.  The right to health is NOT only a programmatic goal to beattained in the long term.

7. Undocumented migrants and the right to health General Comment No. 14 (2000); The Right to the highest attainable standard of health, UN Committee on Economic, Social and Cultural Rights: ”In particular, States are under the obligation to respect the right to health by refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy”. General Comment No. 14 (2000); The Right to the highest attainable standard of health, UN Committee on Economic, Social and Cultural Rights: ”In particular, States are under the obligation to respect the right to health by refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy”.

7. Undocumented migrants and the right to health Mission to Sweden. Report of the Special Rapporteur on the right to the highest attainable standard of health, Paul Hunt (2007): ”Asylum-seekers and undocumented people are among the most vulnerable in Sweden. They are precisely the sort of disadvantaged group that international human rights law is designed to protect.” ”… the Special Rapporteur encourages the Government to reconsider its position with a view to offering all asylum-seekers and undocumented persons the same health care, on the same basis, as Swedish residents. By doing so, Sweden will bring itself into conformity with its international human rights obligations.” Mission to Sweden. Report of the Special Rapporteur on the right to the highest attainable standard of health, Paul Hunt (2007): ”Asylum-seekers and undocumented people are among the most vulnerable in Sweden. They are precisely the sort of disadvantaged group that international human rights law is designed to protect.” ”… the Special Rapporteur encourages the Government to reconsider its position with a view to offering all asylum-seekers and undocumented persons the same health care, on the same basis, as Swedish residents. By doing so, Sweden will bring itself into conformity with its international human rights obligations.”

8. References  General Comment no. 14, The United Nations Commission on Economic, Social and Cultural Rights (2000)  The Right to Health: A Toolkit for Health Professionals, British Medical Association and the Commonwealth Medical Trust (2007)  The Right to Health, Fact Sheet No. 31, Office of the UNHCR and WHO (2008)  Fact sheet: Our right to the highest attainable standard of health, Human Rights Centre of the University of Essex & IFHHRO (2007)  Mission to Sweden. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/HRC/4/28/Add.2., Paul Hunt (2007)  General Comment no. 14, The United Nations Commission on Economic, Social and Cultural Rights (2000)  The Right to Health: A Toolkit for Health Professionals, British Medical Association and the Commonwealth Medical Trust (2007)  The Right to Health, Fact Sheet No. 31, Office of the UNHCR and WHO (2008)  Fact sheet: Our right to the highest attainable standard of health, Human Rights Centre of the University of Essex & IFHHRO (2007)  Mission to Sweden. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/HRC/4/28/Add.2., Paul Hunt (2007)