Regional Conference on Migration

Seminar on Human Rights and Migrants


Paper presented by the International Organization for Migration


I. Introduction


In preparation for this meeting on the human rights of migrants, Member States of the Regional Conference on Migration received a questionnaire dealing with various rights accorded to migrants in their respective countries. One topic of the questionnaire was access to emergency health care. This presentation aims to present the responses to the questionnaire on this topic, but will first highlight the relevant international standards on emergency health care. Identifying the international principles will provide a context and point of comparison for the answers, and allow an assessment of the degree to which the practice of a country conforms to international standards.



II. AppIicable Principles


The right to health is guaranteed in various international human rights instruments. Article 25(1) of the Universal Declaration of Human Rights states in part that Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services..


The Declaration is applicable to all human beings, regardless of nationality, or legal status, and is to be applied without discrimination. 'The right to health is elaborated further by the International Covenant on Economic, Social and Cultural Rights of 1966. Article 12 guarantees the right of everyone to the enjoyment of the highest, attainable standard of physical and mental health and obliges States Parties to take steps to ensure the creation of conditions which would assure to all medical service and medical attention in the event of sickness. This too applies to all persons without discrimination.


These are the basic principles referring to health and medical care. The right to emergency health care for migrants is provided for in the 1990 UN Convention on the Protection of the Rights of All Migrants Workers and Their Families. Article 28 provides a clear and unambiguous provision guaranteeing a right of access to emergency health care to all persons, irrespective of nationality or status.


This Convention, which is not yet in force, is an attempt to reaffirm and establish basic human rights norms and to embody them in an instrument applicable to migrant workers and their families. lt defines various categories of migrant workers and in Article 7 affirms that the rights enumerated in the Convention are to be respected without distinction of any kind. Although the Convention distinguishes between documented migrant workers and those who are undocumented or in an irregular situation, Part III of the Convention enumerates a comprehensive set of civil, political, economic, social and cultural rights applicable to all migrant workers and members of their families. These are largely restatements of the basic human rights found in other instruments, and include the right of migrants to receive any medical care that is urgently required for the preservation of life and the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. lt also provides that such emergency care shall not he refused them by reason of any irregularity with regard to stay or employment.


In other international instruments, the right to access to emergency health care is not clearly defined. That there is such a right, however, can be extrapolated from the existence of the right to health. Logically, the right to health must include, at a minimum, a right to emergency health care. Further, such a right derives from the right to life, as in extreme circumstances, denial of emergency assistance may lead to a denial of the right to life. The right to life is a fundamental human right, to be enjoyed by all human beings Without discrimination.


lt appears, therefore, that the right to health is to be enjoyed by all human beings. The right to emergency health care is a derivative right, which can be extrapolated from the rights to health and to life. To guarantee this right, therefore, States must provide access to emergency health care to all persons within their territory, as these rights are to be enjoyed without any form of discrimination.


III. Overview of States Practice


The questions posed in the questionnaire were the following:

What requirements are made to obtain access to emergency health care? What limitations-are imposed?

Is health care besides emergency health care provided lo migrants?


In Belize, there are no legal or administrative requirements to obtain access to Government institutions for emergency health care. Preliminary examination and treatment are provided free of cost, however, fees are levied for surgery, therapy, rehabilitation, ambulance and inpatient facilities. This applies to all patients, regardless of nationality or migratory status, and no limitations are imposed on the basis of status. Further, the Government provides health care including pre-natal and post-natal clinics, community services and health education to all persons free of charge, irrespective of status. However, it was noted that of the services where fees are levied, the collection rate from migrants is very low, and that this may be the topic of policy review in the recently initiated Health Policy Reform Project.


Canada responded to the first of these questions with a general statement that emergency health care is universally available in Canada and that no limitations apply. lt was then explained, however, that immigrants may have a residence qualification period for publicly funded health care coverage. Refugee claimants without the resources to-pay for health care are covered under the Interim Federal Health programme until they qualify for a provincial health care plan or are removed from Canada. Tourists are expected to meet the cost of health care services either personally or through private insurance. Furthermore, it was stated that visitors are generally provided emergency services on humanitarian grounds irrespective of having private health care insurance or personal funds.

Presumably, this would also cover undocumented migrants and thus, emergency health care will be provided regardless of status, nationality or funds. Canada noted that the provision of such emergency care has created budgetary challenges for some urban hospitals. Access to other types of health care was dependant on health care plans or private insurance. lt is presumed, therefore, that such access would, in practice, he difficult for undocumented migrants. Again, those persons who have claimed refugee status are, pending the final outcome of their claim, covered by the Interim Federal Health Care programme.


In Costa Rica there are also no requirements for public emergency health care and no limitations on access. lt does provide other types of health care and social security coverage to migrants but this is dependent on the insurance under which the migrant is covered, which in turn depends upon the status of the migrant. The National Institute for Social Security has adopted a number of rules to improve and clarify the voluntary affiliation of foreigners, an affiliation which is in principle not possible for foreigners in a n irregular situation.


With the only requirement that patients needing attention go to the health centres, the national health system of El Salvador offers all members of the population emergency medical care who request it, and who need urgent attention. On some occasions, however, expensive specialized tests or medication cannot be offered due to the cost. lt was indicated whether this applied only to migrants, or to all sections of the population. Regarding other areas of health care, health services are provided to all persons, without distinction as to nationality, and a voluntary contribution will be requested.


Similarly, in Guatemala there are no requirements to access to emergency health care and no limitations. Guatemala responded affirmatively to the question whether other types of health care are provided to migrants, but gave no details on any conditions attached or whether distinctions are made between documented and undocumented migrants.


Honduras distinguished the care available in public and private health facilities. In public hospitals, there are no limitations imposed on access to emergency health care, therefore, it is available to all persons. Public hospitals will also supply other types of health care to migrants. However, at the Honduran Institute of Social Security, migrants must he covered by social security (benefits will also extend to children of migrants until the age of five). For emergency attention in private centres, migrants must be able to pay. Access to other types of health care is available, but as far as private benefits are concerned, only if migrants are able to pay the costs.


Mexico will provide emergency health care to any person whose condition poses a grave threat to physical integrity or life. No limitations are imposed for reason of nationality or migratory status. Through legislative reforms introduced in 1996, children of migrants in an irregular situation are covered as of the date of birth.


Nicaragua responded to the questions in this section with reference to detained migrants, saying that if urgently required, migrants in detention will be sent to medical centres, although there is also a medical doctor at the detention facilities.


In Panama too, there is no requirement for obtaining emergency health care in State hospitals. Panama was the only country that mentioned a specific obligation for private clinics to also offer emergency care to those persons whose life is at risk. At State hospitals, a symbolic payment is usually expected, but will not be enforced. In terms of other types of health care, Panama responded that migrants are able to benefit from medical centres, according to their requirements.


Anyone present in the United States, regardless of immigration status has access to emergency health care. Medicald, a federal/state programme to pay for health care of the poor, pays for emergency health care for anyone who meets income eligibility standards. Limitations to reimbursement are based on whether the condition truly represents a medical emergency. While Medicaid pays for emergency care of indigent migrants, other migrants, who are insured or who can pay, have access to all health care. Federally-funded community health centres and migrant health programmes currently provide care without seeking documentation of legal status. Federal law barring access by migrants to federal benefits is being interpreted with respect to community and migrant health centres. Further, public health services related to infectious diseases are available to anyone present in the US.


IV.  Conclusions


From the responses of the questionnaire, it appears that one of the participating States will refuse emergency medical attention when required by persons within their territory.  This was the case, at least, for public health facilities and hospitals.  It can also be said that few if any limitations were imposed on access to such care, although in their responses States did not always specifically refer to costs.  Only a few of the countries are other health care services provided without restriction.  Usually, such services are dependant on insurance, which implies that the migrant is in the territory of the country lawfully, and has the appropriate documents.  Nevertheless, in these times of strict migration policies, tight border security and negative perceptions of migration, it is positive that all the countries of the Regional Conference on Migration insist on the preservation of certain basic human rights principles, and provide migrants with access to emergency health care.